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Exploring the Supreme Court’s role in foreign policy, Noah Feldman argues against unilateralism in the law

Professor Noah Feldman

Professor Noah Feldman

In the seven years since 9/11, the question of how we relate to the rest of the world -- and how we should -- has inescapably made its way to the Supreme Court, as the United States has tried to balance the benefits of multilateral alliances with the demands of unilateral self-protection, observes Harvard Law Professor Noah Feldman. And, he says, it is increasingly becoming clear that the defining constitutional problem for the present generation will be the nature of the relationship of the United States to the international order. 

Feldman, in a September 16th lecture marking his appointment to the Bemis Professorship of International Law Should international law, offered examples of the kinds of questions that will increasingly come before the Court: Should international law be treated as law in the United States? What rights, if any, should be accorded non-citizens who come before American courts or tribunals? Do the protections of the Geneva conventions apply to people that the U.S. government accuses of being terrorists? Should the U.S. Supreme Court consider the decisions of foreign or international tribunals when it interprets the Constitution? (Feldman recently explored these issues in a New York Times Magazine cover story, "When judges make foreign policy.") (Watch a webcast of the lecture.)

In recent years, Feldman noted, two prominent schools of thought have emerged to answer these questions. One view, closely associated with the Bush administration, begins with the observation that law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people. From this standpoint the Constitution is seen as facing inward, toward the rights and security of Americans within the borders of the country. In this view, Feldman observed, any interpretation of the Constitution that restricts the nation’s security or sovereignty — for example, by extending constitutional rights to non-citizens encountered on battlefields overseas — is misguided and even dangerous.

A competing view, championed mostly by liberals, Feldman said, defines the rule of law differently: law is conceived not as a quintessentially national phenomenon, but rather as a global ideal. This view demands that American law be pictured alongside international law and other (legitimate) national constitutions. The U.S. Constitution, according to this cosmopolitan view, faces outward: rights similar to those it confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order.

The Supreme Court has become a live battleground for these two worldviews, as evidenced by two of its decisions last term, Feldman told his audience in Langdell Hall’s Caspersen Room. One of the cases—Boumediene v. Bush—took place against the backdrop of the detentions of suspected terrorists at Guantánamo Bay, Cuba. The detainees were being held there because, Feldman said, the Bush administration’s lawyers were confident that detainees there would not enjoy constitutional rights. But the Court’s decision in Boumediene repudiated that attempt. The majority, led by Justice Kennedy, announced that for constitutional purposes, Guantánamo Bay was part of the United States. In effect, Kennedy’s opinion rejected what the Bush administration had claimed to be the rule that noncitizens held outside the United States were not entitled to constitutional protection.

In this way, said Feldman, the Court embraced the ideal of the outward-looking Constitution: a document that protects the rights not only of citizens within the United States, but also of noncitizens outside its formal borders.

The “outward” view may have prevailed in Boumediene, but it lost in another case decided by the Court last term, Medellín v. Texas. That case stemmed from an appeal by foreign death row inmates in the United States who had never been told they had the right to speak to the embassy of their home country, a right guaranteed by treaty. The International Court of Justice had declared that the violation tainted the inmates’ convictions, and insisted that they get their day in court to try to get them overturned.

The Supreme Court disagreed, holding that the treaties obligating us to listen to the International Court of Justice were not binding law.

In Feldman’s view, the Medellín majority saw the Constitution as a domestic blueprint designed to preserve and protect the United States from foreign encroachment, even at some cost to the international rule of law.

Explaining the contradiction between the outward-looking Boumediene decision and the inward-looking Medellin ruling, Feldman observed that historically, we have had an inward- and outward-looking constitution by turns, depending on the needs of both the country and the world. The right question to ask, he said is: In what direction do we need the Constitution to look right now?

Answering this requires the Supreme Court to think not only terms of principle, but also of policy, said Feldman—to weigh national and international interests, and to exercise judgment about how our Constitution functions and is perceived at home and abroad. The conservative and liberal approaches to legitimacy and the rule of law need to be supplemented with a healthy dose of real-world pragmatism, he said. In effect, the fact that the Constitution affects our relations with the world requires the justices to have a foreign policy of their own.

Feldman acknowledged the legal truism that such inevitably political judgments are not the proper province of the Court. But the inescapable reality, he said, is that the Court is in charge of interpreting the Constitution, and the Constitution plays a major role in shaping our engagement with the rest of the world. The Court therefore has no choice about whether to involve itself in the question of which direction the Constitution will face; it is unavoidably involved.

So what do we need the Constitution to do for us now? Feldman asked. The answer, he said, is that the Constitution must be read to help us remember that while the war on terror continues, we are also still in the midst of a period of rapid globalization. We need to build and rebuild alliances — and law has historically been one of our best tools for doing so. In our present precarious situation, he argued, it would be a terrible mistake to abandon our historic position of leadership in the global spread of the rule of law. The Boumediene decision was important because it recognized the the practical necessity and importance of reassuring the citizens of the United States and the world at large that the United States had not given up the role it assumed after WWII as the chief proponent of the rule of law worldwide.

By comparison, Feldman said, the message sent by the Medellín treaty decision was precisely the wrong one for this historical juncture, when the United States needs – at least for the moment -- to convince the world that the project of international legality is one in which we believe.

Futhermore, Feldman observed, the growing global financial crisis will result in more international regulation, not less. Conflicts between US courts and international tribunals about the meaning of our international obligations are going to become more and more common, he predicted. Next time, the Supreme Court may not be able to avoid conflict by asserting that the courts are not obligated to listen to the international body.

-- Robb London

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