At Law: America as Pattern and Problem

Abstract

Since the days of Tocqueville, foreign observers have seen America as both a pattern and a problem. They still do, and in ways that illuminate the way law deals with bioethical issues both here and abroad. America was long exceptional in having a written constitution, in allowing its courts the power of judicial review, and in letting courts exercise that power to develop and enforce principles of human rights. Today, that pattern looks markedly less exceptional. After the Second World War, Germany and Japan were persuaded to adopt constitutions that included human rights provisions and that endowed courts with the power to interpret them. Since that time, a number of other countries--Canada, for example--have also moved closer to the American constitutional pattern. Many countries, however, have not been content to borrow American constitutional principles and practices. Their courts have also asserted their authority to develop and enforce principles of human rights in two other ways. First, courts in many countries have assumed jurisdiction over questions involving those rights by virtue of their duty to interpret treaties their countries have signed. Second, and strikingly, courts in many countries have come to see themselves as joint participants in the work of building an international body of human rights law. As my colleague Christopher McCrudden writes in his fascinating study of this development, is now commonplace for courts in one jurisdiction to refer extensively to the decision of other courts in interpreting human-rights guarantees.[1] This is where America has come to seem a problem to our foreign observers. For the United States has been irritatingly reluctant to sign these treaties, and American courts have been irritatingly unwilling to consult the decisions of foreign courts. Why? The reasons are--obviously--various. Foreign observers are not infrequently pleased to believe that Americans are irredeemably provincial. (What do you call someone who speaks two languages? Bilingual. What do you call someone who speaks one language? American.) And it is perfectly true that, while lawyers in many countries are likely to have had some instruction in a foreign law (and even to have studied in a foreign country--often the United States), American lawyers have generally not been so blessed. To be sure, Americans lawyers have less need. They work in the world's dominant economic power, one so vast that much more internal trade occurs within American boundaries than within any other industrialized country. American lawyers, to put the point differently, are more narrowly trained because--more than the lawyers in other countries--they can afford to be. Foreign observers also relish suggesting that America has resisted signing some international human rights treaties because it is hopelessly arrogant and cannot believe it has anything to learn about human rights from abroad. It is surely true that American foreign policy has in recent decades often seemed loftily confident of its mission to bring the wretched heathen to the human rights light. But the reluctance to sign such treaties has other, less evident, roots as well. For one thing, a number of international human rights agreements have grown out of regional (and particularly European) efforts at economic and political integration, efforts in which the United States has been, if anything, a competitor. More significantly, however, the government of the United States is--more than almost any foreign country's--federal. We confide many issues with human rights implications to the states, not the federal government. In addition, some Americans have opposed these treaties because they take them seriously enough to be uneasy about where judicial interpretation will take their provisions. That the American executive and legislative branches have not leapt to endorse human rights treaties may help explain why American judges have not felt encouraged to be guided by the developing international law of human rights that judges in many countries are creating. …