Sunday, October 24, 2010
Rights, Words, and Laws: Constitutions and Their Motivation
Amartya Sen October 23, 2010// TNR
From an H.L.A. Hart lecture at Oxford
Words have meanings, often more than one. Many words also have evocative power and communicative reach that go well beyond the restricted use of these terms with well-defined professional delineation. In 1911, when Christabel Pankhurst asserted in a speech in London that “we are here to claim our right as women, not only to be free, but to fight for freedom,” adding that this is “our right as well as our duty,” she communicated a great deal. And she did so despite the difference between her use of the term “right” and any legal concept of “right” that could be sustained as a claim in any then-existing court of law. Women did not have the right to vote in Britain in 1911, nor would that right be achieved until seventeen years after Pankhurst’s speech, in 1928.
An immediate question that is raised by this duality concerns the connection, if any, between the two types of uses of the concept of rights—the one based on legal force and the other offering moral and political motivation. It would be odd if the two concepts resided in isolation in a totally separated universe. In fact they do not; but it is just as important to recognize that they reflect distinct notions of rights as it is to try to understand the connections between them. This plurality of meanings has been quite central, over several centuries, to debates on rights, and it is particularly important to see its relevance and its reach in understanding the nature and standing of what we now call “human rights.”
There are also other issues that connect the understanding of rights to language. There is the question of the interpretation of laws and of constitutions, since words mediate our understanding of how past decisions may bind us today and what should be done here and now. Words cannot but be central to legal debates as well as moral ones. And yet, as Samuel Johnson noted in the preface to A Dictionary of the English Language, “Language is only the instrument of science, and words are but the signs of ideas.” He also noted that these “signs” are “apt to decay.”
The discipline of the attribution of meaning is integrally relevant to some of the pressing American debates on legal understanding, including the crucial question of the interpretation of the American Constitution. It has a close bearing, for example, on the plausibility and reach of what is called “originalism,” a powerful approach to constitutional understanding pursued in varying forms by Robert Bork, Antonin Scalia, and Steven G. Calabresi, among others. I will argue that it is hard not to be an “originalist” in some sense, in applying an already existing constitution—and yet that recognition still leaves open important decisions about what exactly of the original enterprise needs to be preserved: the language used, the intentions underlying it, or what we might call its constitutional motivation? It is important to understand in this context the philosophical engagement about social organization that occurred during the European Enlightenment—the period in which the American constitution also had its origin.
In Anarchical Fallacies, in 1791 - 1792, Jeremy Bentham issued a hugely obdurate attack on the idea of what we would today call “human rights.” Bentham was denouncing the French declaration of “the rights of man” in 1789. He dismissed the French claim that men and women had some “natural rights.” He argued that the idea of natural rights was “simple nonsense,” going on to describe “natural and imprescriptible rights” as “rhetorical nonsense—nonsense upon stilts.” In dismissing in this way the very idea of any kind of pre-legal human rights, Bentham would have found Christabel Pankhurst’s speech as no more than heaps and heaps of “simple nonsense.”
Bentham explained his position thus: “Right, the substantive right, is the child of law: from real laws come real rights; but from imaginary laws, from law of nature,” can come, he insisted, only “imaginary rights.” It is easy to see that Bentham’s rejection of the idea of the natural “rights of man” depends entirely on his insistence on a legal authorization for the use of the term “rights.” And yet, even as Bentham was presenting his no-nonsense repudiation, the idea that some rights precede legislation was being pursued with much insight and force of thought by such pioneering social thinkers as Thomas Paine in Rights of Man and Mary Wollstonecraft in A Vindication of the Rights of Men and A Vindication of the Rights of Woman.
The impasse between the different meanings is important to recognize, since the idea of human rights is such an important area of social thought and action today. To avoid any confusion, we must note the fact that there are areas of legislation that are described as being about “human rights,” and many countries have laws that are called “human rights laws,” but the term “human rights” is not confined in ordinary discourse to already legislated rights.
In an insightful essay called “Are There Any Natural Rights?” which appeared in 1955, the great legal philosopher H.L.A. Hart argued that people “speak of their moral rights mainly when advocating their incorporation in a legal system.” Hart went on to add that “the concept of a right belongs to that branch of morality which is specifically concerned to determine when one person’s freedom may be limited by another’s and so to determine what actions may appropriately be made the subject of coercive legal rules.” Rather than seeing rights, as Bentham had, as a “child of law,” Hart’s view takes the form, in effect, of seeing natural rights (including what we now call human rights) as “parents of law,” since they are characterized as moral arguments that lie behind legislation.
Generating arguments and inspirations for legislation is certainly one way in which the ethical and political force of human rights has been constructively deployed, and Hart’s illuminating defense of the idea and the usefulness of human rights in this specific context is powerfully explanatory. Many states, and also associations of states, have proceeded to give legal force to certain rights seen as important human rights on the basis of the public recognition of them. The Universal Declaration of Human Rights in 1948, promulgated by the newly established United Nations, was seen by its sponsors, particularly Eleanor Roosevelt, as a template for actual legislation to be taken on board by individual states. And to some extent that has actually happened.
There have been many efforts drawing on this—and other—sources of inspiration. The European Court of Human Rights, established in 1950 (following the European Convention for the Protection of Human Rights and Fundamental Freedoms), has been empowered to consider cases brought by individuals from the signatory states against violations of human rights. This has been supplemented in the United Kingdom by the Human Rights Act of 1998, aimed at incorporating the main provisions of the European Convention into domestic law, with a supervisory role of the European Court to see “just satisfaction” of these provisions in domestic judgments.
There is no doubt that Hart’s clarification was helpful in breaking up—as the police say—a needless brawl, in which Bentham’s voice, insisting on a restricted use of the word “rights” only in the legal sense, was high and mighty in chastising dissenters, and in trying to prohibit any different use of the term “rights.” And yet Hart’s resolution leaves open certain big questions that must also be addressed.
There is the question, for a start, of the interpretation of “natural” in what can be called “natural rights.” The claim need not take the form that it is ideally legislated into the statute book everywhere on the ground that this is a “natural right.” The appropriateness of legislation may strongly depend on contingent social circumstance. The demand for law need not have much to do with what calls for legislation in some imagined “state of nature.” For example, if some residents are arbitrarily excluded from being covered by public health care or from having state-sponsored medical insurance that others already have in the existing institutional structure, the moral and political demand in contention has to be seen in the specific context of the institutional arrangements that exist in that society, from which some are unjustifiably excluded. The issue of discrimination is directly involved also in Christabel
Pankhurst’s demand that women should have voting rights since men already had such rights. As John Tasioulas has argued in an illuminating essay called “The Moral Reality of Human Rights,” “human rights enjoy a temporally-constrained form of universality, so that the question concerning which human rights exist can only be determined within some specified historical context.”
Hart was not arguing that the ground for something to be legislated into the statute book is that it is in some preexisting sense a “natural” right, but rather that “advocating their incorporation in a legal system” can be part of what we understand by the declaration of a “natural right” or a “moral right,” no matter how that normative judgment is arrived at. The meaning of “rights” in the moral sense must include this interpretation of the word—as the existence of a corresponding moral claim. The exact ground for such a moral claim is a separate issue from the existence of the moral claim.
A further issue that Hart’s clarification keeps open concerns the completeness, as opposed to the relevance (which is clear enough), of the “parents of law” view of human rights seen in moral or political terms. To acknowledge that the recognition of human rights can be aimed at fresh legislation to give legal status to those rights is not the same thing as taking the use of human rights to lie exclusively in determining what should “appropriately be made the subject of coercive legal rules” (in Hart’s words). If the case for new laws arises from moral or political priorities to which legislation should cater, should not those same values be pursued, if feasible, also by means other than legislation?
Thus, social monitoring and other activist support provided by such organizations as Human Rights Watch, Amnesty International, Oxfam, Doctors Without Borders, Save the Children, Red Cross, or ActionAid (to consider many different types of NGOs) can themselves help to advance the effectiveness of acknowledged human rights. In many contexts, legislation may not be at all involved. Public exposure and condemnation can play a huge role in preventing violations of what are widely acknowledged to be moral rights of others.
Let me give a particular example. Unlike the human rights commissions in India and in South Africa, which are accorded a secure legal standing in their respective countries, the Human Rights Commission of Pakistan is merely an NGO—but thanks to the inspired and skillful use of public information and agitation (under the visionary leadership of Asma Jahangir and I.A. Rehman, among others) the commission in Pakistan has had quite a substantial effect in securing the respect of the basic civic and social claims of many people in Pakistan. Many Pakistani citizens, along with others elsewhere, may wish that the idea of human rights had an even greater effect on what has been happening there, but it would be a big mistake to deny the serious influence that it does actually possess, despite very adverse circumstances. Public knowledge and informed discussion can play a huge role in making people think about the freedom of others and about the unacceptability of violating their human rights.
Indeed, it was the secretly videotaped film of the public flogging of a young woman in the Taliban-controlled Swat district for some alleged transgression in the eyes of the Taliban that outraged Pakistani civil society and provoked it to take an active interest in preventing such abuse. And it was this awakened social interest related to information coming through the media that paved the way for the long-delayed decision by the Pakistani military to launch an operation to remove the Pakistani Taliban from the Swat Valley. There was no legal change, and yet the realization of the human rights of the people involved was significantly promoted by the Pakistani human rights movement through non-legislative activities.
This also raises an interesting question about the ideal domain of the legislative route. It is sometimes presumed that if an unlegislated human right is important, then it would be ideal to try to legislate that human right into a precisely specified legal right. This is, in fact, a non sequitur, since legislation is not the only way of advancing human rights, nor is it necessarily the best way of going about it.
For example, recognizing and defending a wife’s right to have an effective voice in family decisions, often denied in male-dominated traditional societies, may well be extremely important, and may be widely recognized as such. And yet the advocates of this right, who emphasize, correctly, its far-reaching ethical and political relevance, can plausibly agree that it is not sensible to make this human right into a “coercive legal rule” in one form or another—say, by taking the non-consulting husband into custody for his lapse. The required changes would have to be brought about in other ways, by means of social criticism as well as public debates and agitation. This recognition would not have come as a surprise to Wollstonecraft, who already in 1792 discussed a variety of different ways in which the realization of women’s rights could be advanced.
If it is important to look beyond the legal route in making human rights more effective, there is also the important issue of identifying the nature and the scope of the legal route itself, since it need not always involve fresh legislation. The reach of law also depends on the interpretation of existing laws. The legal route of incorporating considerations of human rights that come to carry political conviction may not invariably involve new legislation.
There is, understandably, considerable debate on how much discretion judges should have in order to bring about changes in the application of existing laws through the legal interpretations reflected in their judgments. There have been serious arguments presented by judges as well as legal theorists for making more room for the “here and now” in legal decisions in the contemporary world. Justice Stephen Breyer has powerfully argued, in Active Liberty: Interpreting Our Democratic Constitution, in favor of paying attention to “the purpose and consequence” of existing laws, including constitutional provisions, in interpreting the laws.
On the other side, the school of legal thought known as “originalism” insists that the original content of the constitution must be preserved, thereby firmly constraining the liberty that can be taken in contemporary judicial decisions. Justice Antonin Scalia has famously articulated his insistence on this requirement, along with his unconcealed frustration at departures from originalism, denouncing something that he calls the philosophy of the “living Constitution,” which he sees as a counterpoint to the originalist philosophy. I quote from Justice Scalia:
...The interpretive philosophy of the “living Constitution”—a document whose meaning changes to suit the times, as the Supreme Court sees the times—continues to predominate in the courts, and in the law schools. Indeed, it even predominates in the perception of the ordinary citizen, who has come to believe that what he violently abhors must be unconstitutional. It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from such a seductive and judge empowering philosophy...
The case for restraining judges has been sharply expressed also by Steven G. Calabresi, a leading legal philosopher who edited the influential book Originalism: A Quarter-Century of Debate:
...Why on Earth should the citizens of a democracy allow a committee of unelected lawyers to make binding rules on the most sensitive issues of morality and religion on a five-to-four vote based on their own personal moral and religious beliefs?...
There is, clearly, much force in this argument, but the moral and religious beliefs of judges are not the only possible source of resourceful departure in the interpretation of law.
We have to ask whether contemporary public reasoning and the understanding generated by it can or cannot be accepted as a legitimate influence in legal interpretation.
This exclusion does not close the door to such influence, though we have to be clear about how such influence may be legitimately allowed. The issue in this context is not whether the judges should be capriciously free to insert their own personal beliefs, but whether a new public recognition of the appropriateness of some putative legal rights should not be reflected in contemporary legal judgments. What room is there for moving with the times, particularly since the world that the Framers of the Constitution faced was so very different from the contemporary world? It involved the acceptance of many practices that would be seen today as totally unjust, and even as strange, such as slavery and the exclusion of women from the electoral process.
The discipline of interpreting the Constitution clearly has to be a part of the specification of any “originalist” approach. This was importantly delineated by the “intellectual godfather of originalism” (Calabresi’s phrase), Robert H. Bork. The views that Bork presents include the insistence that the judges today must “interpret the [Constitution’s] words according to the intentions of those who drafted, proposed, and ratified” them. Yet giving the intentions rather than the words chosen in the Constitution an unassailable status is not the only way originalism can be understood—nor, it has been argued, is it particularly plausible. As Calabresi puts it, “The original public meaning of the Constitution’s words as revealed in old dictionaries is certainly law, but there is no reason to think that the un-enacted, idiosyncratic intentions of particular Framers are law.”
The point about “idiosyncrasy” is well taken, but the priority of words over intentions calls for further scrutiny. The old Constitution can speak to us today in two ways: through the motivation behind the rules of the kind that the Framers sought in order to make it possible for people with different interests and divergent views to live and prosper together, or through the words they used to translate their constitutional motivation into specific rules. Calabresi demands that we concentrate on the latter route—a rich and powerful approach that I will presently scrutinize—but is it really so odd to consider seriously the motivation behind the Constitution and behind the words that were chosen, rather than only the words themselves?
Motivation is not, of course, the same thing as the specific intentions of particular Framers. Calabresi is surely right to be skeptical of making everything turn on something that can be quite psychological—and peculiarly personal. But behind the Framers’ intentions there was, surely, a social vision of constitutional appropriateness, which would make room for people with divergent interests and values to live together (protecting in particular “the individual’s integrity and inherent dignity,” as Bernard Bailyn puts it). This enabling vision may be called “the constitutional motivation,” and it could even be seen, without straining our imagination a great deal, as the “intention” of the Constitution.
The identification of an appropriate constitutional motivation was a central political exercise in the European Enlightenment, at a time when the American constitution was also crafted; and this enterprise engaged exponents of social contract theory (such as Hobbes, Rousseau, and Kant) as well as theorists of “social choice” (such as Condorcet and Adam Smith). These political explorations have been continued in our own time, in diverse ways, by such writers as John Rawls, Kenneth Arrow, James Buchanan, Jürgen Habermas, Ronald Dworkin, Bruce Ackerman, and Joseph Raz, among others, and can still be pursued substantially further (as is discussed in my book The Idea of Justice). Something more than just the words and the phrases of the Constitution must surely be involved in understanding the motivation behind a democratic and participatory constitution that tries to create a legitimate space for different types of people with varying preoccupations and circumstances in a diverse society.
In presenting his own version of originalism, Calabresi flexibly allows for using today’s understanding of the words that are already there in the Constitution: “The meaning of these words and their application to present-day problems depends, in the end, on what the American people think they mean acting over a long period of time through our three-branch process of constitutional interpretation.”
In response to Cass Sunstein’s perspicacious comment that the Framers of the American Constitution would not have understood what issues were involved in the desegregation of schools (in Brown v. Board of Education) or in striking down anti-miscegenation laws (in Loving v. Virginia), Calabresi argues that “the answer to that is that original-meaning textualists have never claimed that Congress understood what it was doing when it passed legal texts. All we have claimed is that those texts are the law and have to be read like laws.”
It is useful here to take note of the philosophical understanding, clarified in particular by Wittgenstein, that the meaning of words has to be seen in terms of the “rules” that govern their use. What we have in the form of a constitution is a collection of words, and we can, plausibly enough, treat the words as the “fixed point,” but take note of the varying meanings of these words over time, reflected in the varying rules governing their use. Calabresi’s version of originalism would allow the use of the ongoing contemporary understanding—reflected in the current rules governing the use—of those words. We may have to understand the same words differently as the linguistic conventions—the rules for the use of words, in the Wittgensteinian sense—-actually alter over time.
The primacy of texts, using contemporary interpretation of the words and linguistic conventions, would allow a good deal of the “here and now” within the originalist perspective. It can even create room for invoking, if only implicitly, concerns about what we now call, in the language we use today, human rights. Even though engaging in debates on the understanding of words and language might seem like an unlikely way of getting human rights recognized, this type of linguistic analysis is, of course, entirely in line with what we may nostalgically call philosophy.
The question that remains is whether this is the right way of reflecting the “here and now” in legal judgments. There are at least two problems that must be faced by the word-centered version of originalism. First, it may be unrealistic to think that there would invariably be one unambiguous meaning assigned to a chosen text that can be simply “read off” from the prevailing understanding of the words, particularly (to note Calabresi’s specification) “what the American people think they mean.” The plurality—and ambiguity - of meaning would clearly be relevant here. We may escape, with luck, Dryden’s radical worry that we can “torture one poor word ten thousand ways,” but still contemporary usages, which may permit much plasticity of interpretation, need not guarantee a unique reading of the original texts.
This problem deserves a clear recognition, but it is not, I would argue, a fatal objection to the philosophy of relying on the contemporary meaning of the original texts. It may be inescapable that judges will have a considerable role in choosing between alternative meanings that a text can have in conformity with today’s use of the chosen words, but that will be a part of the discipline of legal judgment. Clearly, a judge has to exercise judgment in choosing between the different uses of the same words and linguistic expressions that are current today, varying from the frivolous to the profound. Such judgment need not always be easy—and yet such an exercise would be fundamentally different from the unleashing of personal “moral or religious values” of the judges themselves.
But there is another worry, of a rather different kind, that should give us pause. There are clearly two distinct evolutions that are relevant here: the development of particular values and priorities that are compatible with the general foundation of the “constitutional motivation” (of facilitating a democratic, tolerant, and participatory society); and the progression of language and rules for the use of words, applied in particular to the words in the Constitution’s text.
The two processes will almost certainly be related to each other within a given country and culture, but it would be rather credulous to expect that the two must be, in some clear sense, always congruent, even within a given country. Therefore, if we insist on concentrating exclusively on the evolution of rules of language and words to interpret the Constitution, we are abdicating what is primarily a valuational exercise to a rather different domain of human thought and practice—that of linguistic convention and its changes.
In placing ourselves in the hands of the changing understanding of words and texts (“what the American people think they mean”), we are being asked to leave the choice of substantive ideas to the evolution of linguistic rules. The logic of linguistic transformation may well fail to correspond exactly—or even very closely—to the importance of the ideas themselves. The evolution of ideas, especially normative ideas, is quite distinct from the evolution of linguistic conventions and of the rules for interpreting today’s meaning of old words.
The main issue here is the way in which the “here and now” is best accommodated—in an idea-centered way or in a word-centered way. We may try to accommodate the present-day world by taking note of the significant changes that have occurred since the Founding either by following the evolution of specific ideas compatible with the general constitutional motivation, or by following the linguistic evolution of the words and expressions used in the Constitution. I would argue that the former route, focusing on the constitutional motivation, has a claim to our attention in a way that the latter—the linguistic route—may not be able to capture adequately. The former route is certainly more able to take direct note of the recognition in the Constitution (including its Amendments, particularly the Ninth) that, as Bailyn puts it, “new dangers and new needs will emerge, and that to respond to these dangers and needs, rights must be newly specified to protect the individual’s integrity and inherent dignity.” It is important to distinguish this route from the much-criticized possibility of the judges being free to use their “own values.”
Indeed, in trying to do justice to either of the two approaches, judges interpreting the Constitution would be engaged in an exercise different from that of relying on “their own personal moral and religious beliefs.” If one route forces judges to decide between different contemporary understandings of the same words, the other requires them to decide between the forces of different contemporary ideas, in line with the constitutional motivation. In both cases, the judges have an interpretative role rather than one of incorporating their own moral and religious beliefs in the guise of interpretation. But the two cases involve two rather different—though not disconnected—approaches to interpretation.
All this broaches another issue. If public reasoning has a role in legislation as well as in legal interpretation, should it be confined to the debates and experiences within the borders of a country? If we may not confine it temporally, may we confine it spatially?
Confining judicial and moral scrutiny to ideas within the borders of each country is an approach to justice against which Adam Smith warned, in 1759, in The Theory of Moral Sentiments, as well as in his posthumously published Lectures on Jurisprudence. Smith was particularly concerned about avoiding the grip of parochialism in moral and political reasoning in general, and in jurisprudence in particular.
In The Theory of Moral Sentiments, Smith gives various examples of how discussions confined within a given society can be unreasonably limited by parochial understanding. Among his many telling illustrations is the famous one of the ancient Greeks who believed—even the civilized Athenians among them—that infanticide was perfectly justified. Smith notes: “Aristotle talks of it as of what the magistrates ought, upon many occasions, to encourage. The humane Plato is of the same opinion, and, with all that love of mankind which seems to animate all his writings, nowhere marks this practice with disapprobation.”
Smith’s claim was that if the ancient Greeks had subjected their assumptions to critical scrutiny, particularly by taking note of arguments coming from elsewhere, possibly including the understanding that societies can survive well enough without infanticide, then their decisions might well have been quite different.
This example occurs in a chapter of Smith’s book that he revealingly calls “On the Influence of Custom and Fashion upon the Sentiments of Moral Approbation and Disapprobation.” He points to the fact that “the different situations of different ages and countries are apt ... to give different characters to the generality of those who live in them, and their sentiments concerning the particular degree of each quality, that is either blamable or praise-worthy, vary, according to that degree which is usual in their own country, and in their own times.” He argues powerfully for the importance of bringing in arguments that may have originated at “a certain distance from us” but should command attention here and now.
While Smith’s example of infanticide remains pertinent in only a few societies today, some of his other concerns have relevance to many contemporary societies. This applies, for example, to his general insistence that “the eyes of the rest of mankind” must be invoked to understand whether “a punishment appears equitable.” Scrutiny from a “distance” may be useful for many specific practices common in particular countries—from the prosecution of raped women for adultery (possibly also subjecting them to death by stoning) in several countries in the world to the plentiful use (to consider a very different type of example) of capital punishment in China, Iran, Iraq, and Saudi Arabia, or for that matter in the United States, in contrast with the bulk of the modern world.
The United States executes more people than any other country in the world (fifty-two in 2009), with the exception of China, Saudi Arabia, Iran, and Iraq, based on figures for 2008 and 2009. The “Smithian” issue here is not so much to follow blindly the practice of other countries that do not allow capital punishment (like those in Europe and substantial parts of Latin America) or that carry out executions quite rarely (as in India, South Korea, or Russia, none of which has had an execution in more than five years now). Rather, it is the legitimacy of considering, and critically examining, the reasons that are invoked to argue against the acceptability of capital punishment and of executions in those countries.
It should be obvious that if the freedom of interpretation of a country’s constitution is confined only to the use of language within the country (as Calabresi puts it, “what the American people think they mean”), then arguments coming from elsewhere would be hard to admit, and Smith’s fear of parochialism would remain real. There could be much more freedom—and correspondingly more judicial responsibility—in interpretation if the discipline of interpretation were to extend to values and normative arguments, as opposed to linguistic conventions, that prevail within the borders of a country. There could be even more interpretative freedom—and corresponding judiciary responsibility—if arguments from elsewhere in the contemporary world could also be admitted and considered by the judges.
It is clear that many leading members of the American judiciary, including what looks like the present majority in the Supreme Court, are reluctant to entertain legal arguments that were presented in foreign courts. As Chief Justice John G. Roberts has put it, “No president accountable to the [American] people appointed that [foreign] judge.” The focus here is on the provenance—and legitimacy—of the voice, rather than on the nature of the argument presented. What is important in the Smithian reasoning is the broadening impact of arguments invoked by the “impartial spectator,” and it is a matter of no intrinsic significance that such arguments may come easily—sometimes more easily—“from a distance” and not from nearer to home.
It must be recognized that to listen to distant voices does not require us to be respectful of every argument that comes from abroad. We may reject a great many of the ideas coming to us from elsewhere—sometimes even all of them—and yet there could remain particular cases of reasoning that could make us reconsider our own understandings and views, linked with the experiences and conventions entrenched in a given country or culture.
I turn now to a consideration that applies particularly to countries that are intellectually as open as the United States. Given the freedom and the scope of public discussion in such countries, it is very likely that any serious argument aired elsewhere, including well-argued legal judgments in important foreign courts, will have been, in one way or another, discussed also within the borders of the country—within its own open civil society—often with considerable local support. If the limiting consideration is not that the arguments will have been entertained in American judicial decisions, but that the arguments, despite their foreign origin, will have interested and engaged the American public, then the range of admissibility could indeed be correspondingly larger.
In fact, the American public has not been indifferent to reasoning coming powerfully from foreigners—from Gandhi or from Mandela or, for that matter, from Jesus Christ. Such ideas from elsewhere have become part of the national dialogue, and it has not mattered where they had their origin. And if the legitimacy of legal judgment extends not only to prevailing linguistic conventions, but also to the force of values and ideas compatible with the foundational motivation behind the Constitution, then the freedom and the responsibility of judicial interpretation must, to that extent, be extended.
As it happens, the isolationist convictions of powerful members of the American judiciary are in sharp contrast with the views of the judiciary in many other countries. As Lord Bingham—the former master of the rolls, lord chief justice of England and Wales, and senior law lord—has recently discussed in his illuminating and powerfully reasoned book, Widening Horizons: The Influence of Comparative Law and International Law on Domestic Law, there are really serious limitations in jurisprudence in seeing the laws of any country “as an island, entire of itself.”
And as Lord Justice Sedley argues, illustrating and supporting Bingham’s conclusion, in his forthcoming book Ashes and Sparks: Essays on Law and Justice, the European Convention of Human Rights “has deepened our own [British] jurisprudence and sharpened our judicial standards.”
But even if it were to be resolved—bowing to Chief Justice Roberts rather than to Chief Justice Bingham—that foreign judgments should not gain a hearing in American legal arguments, it is hard to see how the relevance of arguments entertained by the American public can be similarly dismissed. There is nothing in the American Constitution, including the Amendments, deliberated in a broad Enlightenment background, that calls for such a dismissal of new arguments that are consistent with the constitutional motivation. Nor is there any rejection of the necessity to consider “new dangers and new needs” in the future, the possibility of which was clearly foreseen by the American constitutionalists.
It turns out, then, that the distinction between interpreting original texts in terms of changing linguistic conventions and understandings applied to the original words of the Constitution, and interpreting them in the light of public reasoning—including contemporary public reasoning—applied to the original constitutional motivation, is enormously significant. The interpretation of laws can greatly vary according to which route we take in examining the contemporary understanding of legal requirements that were formulated in a different time and in a different world.