One World – One Law?

[Originalism versus Consensus]

recent ruling in our Supreme Court, making the execution of minors (those under eighteen) illegal, brought the harsh criticism of Justice Scalia, a staunch ‘originalist,’ who claimed that the majority [it was a 5 -4 decision] was wrong in invoking the opinions of other world-wide courts and governments in deciding the case.  [The United States and Somalia are the only two countries in which the execution of ‘minors’ is allowed – or was until the recent ruling.]  But Scalia, who takes every opportunity to preach his version of fundamentalist jurisprudence, holds steadfastly to the view that the court must abide by the clear [?] and incontrovertible words contained in a document written in the latter part of the 18^th century.  Aside from the fact that on the face of it this seems a bit absurd, since words can change meaning over two hundred years, Scalia seems to ignore the fact that the USA Constitution was born out of the Enlightenment – a European event.  Thus, the very roots of our Constitution reside historically over the sea, in Italy, France, Germany and especially England.  If one were to be strictly ‘originaliist’ in their thinking they would look back to Hammurabi, the Mosaic laws, the Magna Charta, the Napoleonic Code, etc. to extract the origins of our current laws – most of which can be traced directly to British jurisprudence and of course, to John Locke.  But Scalia would say that no, we are talking about a specific document, regardless of its historical and intellectual progenitors. This brand of fundamentalism will no doubt be excused by those who believe that language meaning does not change, that it is not culturally malleable, and that we know with great accuracy what was meant by the authors of that 18^th century document, and that those meanings prevail today.

     But the point here is the issue of relying to any degree on the opinions and rulings from other nations in the practice of our jurisprudence.  Five of the nine justices of the Supreme Court held, if tacitly, that those foreign opinions and rulings do matter, since we are all humans, and since we all, more or less, strive toward the same kind of social justice.  Scalia believes that in terms of interpreting the Constitution, we must rely only on that document as the source for interpretation.  Anything more than that is making law in the courts and not interpreting law.  [One can argue that interpretation is making law, but that’s another topic for another time.]  I disagree with Scalia that we must insulate our judicial thinking from all foreign influences, and that we must adhere rigidly to the words, as written, in the Constitution, with scant regard for current mores, cultural, economic and other social practices, both here and abroad.  Opponents of ‘originalist’ thinking believe the Constitution to be a ‘living document,’ or else it would have been far less ambiguous, and would have consumed far more than but a few pages.  At the forefront of all such deliberations is the Bill of Rights, which provide the fodder for most judicial determinations that affect the lives of the average citizen.  At the heart of such deliberations, though never debated with much philosophical ardor, is the origin of the concept of rights.  Scalia and those of his ilk, would eschew any reference to historic relevance to this concept.  But we know that it was not born out of whole cloth in 1789, but had its origins well before the colonists landed on Plymouth Rock.  Who among us can deny that all cultures grow out of previous cultures, and the pre and proscriptions that obtain in a community or nation are seldom if ever rooted only in a contemporaneous culture?

    With only approximately five percent of the world’s population it would seem logical, if not common sense, for the Supreme Court to pay attention to what the people of other nations do by way of legal behavior.  To ignore such is to deny that there is a set of common denominators that apply [as demonstrated by thousands of years of recorded history] to human relations and governments.  This is not any kind of absolutism, but merely recognition of what history has shown.  The foundation of the United Nations was premised on this recognition, and the United States was an original signatory to that organization – although today we hear that organization demonized by members of the right-wing to the point of wishing to make it, and its statements of human rights irrelevant.  Scalia’s position is a special brand of isolationism, hiding behind what he calls ‘originalism.  Inherent in this thinking is the idea that the founding fathers, those who wrote the Constitution and the Bill of Rights, were somehow a moral, ethical and legalistic breed apart from other humans and other nations, and that ‘Americans’ [of which there were none at that point] are different from other humans.  Are we different?

    Justice Breyer admitted to surveying the laws of other nations in developing his opinion regarding the capital punishment of minors, an admission that angered Scalia no end.  If we and Somalia stand alone in our law regarding the execution of minors, so be it, according to Scalia; it matters not that all of Europe differs in this regard.  This brings up the discussion of the concept of universal ethics and norms regarding human relations and governmental powers relative to them.  Does such universality exist, and if so, should it influence our legal system?

     This question can be restated as one dealing with rights, and rights can be interpreted to mean what a community, state or nation allows one to have the freedom to do.  The Constitution’s Bill of Rights were written [at least the first ten of them -- the first ten amendments] as the result of much debate as to what should be appropriate for a document that otherwise has mainly to do with Federal governance and its structure.  They cover all the sovereign states as the only guidance prescribed by the Federal government, all else being left to the states.  Much of the spirit of the Bill of Rights stemmed from the impulses that gave birth to the Declaration of Independence, the document that announced the intention of the colonies to sever its ties with Great Britain.  It contains the famous sentence: ‘We hold these truths to be self evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among theses are Life, Liberty and the Pursuit of Happiness….’  [Nowhere in the Constitution are there any references to the Creator or any deity. The Bill of Rights is not part of the constitution.]  This statement of rights came directly out of the Enlightenment into the minds of Jefferson, Madison, Hamilton and others, and was not some home-grown philosophy.  The key, in my opinion, is the reference to self evident truths – not truths that are attributed to or provided by God, but truths that are self evident to Men.  While the Constitution is indeed a document that addresses the needs and wishes of a new nation in 1789, one can assume that it has an air of universality about it, and indeed has been used as the model for other constitutions world wide.  The Charter of the United Nations has the following set of human rights:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

And it goes on to pledge the signatories to uphold these rights. 

     Clearly, by using the phrase ‘a common understanding of these rights and freedoms,’ it is obvious that there is agreement among nations that such things are important.  Again, while one can take or leave the absolutism that might be read into these rights, it is clear that they are accepted as universally applicable to all nations.  There are no absolutes in this world [save death and taxes!] but there are accepted beliefs that amount to the same thing in terms of developing and maintaining just, stable and secure communities of people. 

     This means to me that as a global collection of people who, through their representative governments, agree that there is a set of human based rules.  These rules are not owned by a single nation, but cover all nations and all people.  If one nation, or nations, from the tribulations of its history of wars, genocide, dictatorships, oligarchies and various kinds of tyranny, have decided to legally deal with a particular perceived wrong, can there be anything wrong in paying serious attention to the thinking behind such a decision?  The humans who occupy France, India and Zimbabwe are, in spite of their color, language and religion,are still humans, who can suffer the same ills as all humans, world wide: lack of freedom, lack of justice, lack of sufficient sustenance, lack of sufficient education and lack of simple human dignity.  If they, through the wisdom and will of their government and legal system, devise a law that addresses these grievances who are we to ignore this solution, especially if it addresses a similar situation in our own country? 

    Do we require a transcendent source for the recognition of and duty to these acknowledged rights?  Alan Dershowitz [with whom I have a respect/disagreement relation] makes an interesting and I believe accurate comment on this:

The argument for an external source of rights thus seems to boil down to the old saw: ‘You can’t live with it, and you can’t live without it. You can’t live with it because it simply doesn’t exist.  You can’t live without it because the consequences of its nonexistence are frightening.’

   While this may ring true, it presents a conundrum for the average person that they are usually not willing to face.. But is that ‘average person’ a universal object for which Dershowitz either/or dictum applies?  I don’t think so.  The average person will lean towards what is most available and most easily embraced – not caring for the arcane arguments of philosophy and theology.  The average person needs food, shelter, physical security, and if the established authorities cannot supply it, their hands are reached out to powers they believe might be able to.  But is there a relationship between these perceived transcendental powers and what I have called the universal needs and rights of the human animal?  I believe there is – in fact I believe that at the root of original religious teachings is connected strongly to the basic needs of the human animal.  If the human animal cannot find succor in the rulers who decide their fate, their degree of happiness and fulfillment, then they turn to gods who might do that, and that turning seems to be a universal event among us.  Peel away the trappings of all religions and we find the basic needs that humans find when they are of age – sustenance, shelter, procreation and defense.  When those are met, the human animal, like other animals, is more or less content.  These are indeed universal in nature, and the likes of Scalia must understand that there are parameters of our human nature that befall us all when we are of age and can make decisions regarding their presence or absence.  I would not call them related to ‘natural law,’ since I do not believe in such laws of nature, but I would call them propensities of our species.  These are closely related to the concepts born out of the Enlightenment – that is, that we humans are the dictators of our own fate and our own desires, and when governments and other institutions try to abrogate these tendencies and choices the results will be either as sad and pitiful acquiescence or a rebellion.  Scalia must know that those of cultures and histories other than our own have as much to say about the case for human freedom, dignity and self determination as we do. 

     There is a bedrock of agreement across all people as to the desirable state of human health, freedom, growth and security.  It is not a ‘natural law,’ but rather a consensus that seems to be inbred in our species.  Were it not for this tendency, surely we would have become extinct long ago, since we are not the strongest, or the swiftest; but we are the most thoughtful, and we are most adept at seeing the consequences of our actions.  Unfortunately, the governing institutions, as distinct from the ‘average’ person, who huddles in the streets and only wishes to provide for her family, are bent on the lofty missions of control – not always on the well being of their constituents.  This, not the universality of the human spirit that yearns for ‘life, liberty and the pursuit of happiness,’ is the culprit, and any institution, be it government or court, that thwarts these needs, is doomed to either be forever tangled in an ideological bramble, or political squabble for power and it will be the people who suffer. 

     We must look to any and all sources for making right, or the most efficacious and just, the formula for human growth, freedom and security, and ignoring any artificial barrier, such as the concept of ‘originalism’ that might stand in the way.  Scalia’s problem is that he is not looking to what might work for the betterment of our citizens, but rather to a principle, his particular legal ideology.  He apparently sees Americans as a distinctly different species.  We aren’t.  He believes that his originalist principle trumps the common aspects of all people, whose basic needs are, for the most part the same everywhere.  If a life-saving anti-viral drug is discovered in India there would be no doubt that we should use the drug.  If an effective legal solution for some social ill, common to all, is formulated in England or Germany or South Africa, should we ignore it for the sake of the principle of ‘originalism?’

    In the Declaration of Independence, the phrase ‘all Men are created equal’

was a universal moral dictum, not a purely and only American one.  Kant said: ‘Act as if the maxim of your action were to become through your will a general natural law.’  This bit of Kant’s philosophy is apt here.  It is reasonable to base the value and universal applicability of social, legal standards on the concept that if we believe and accept a formulation of legal standards for us, we must believe it applies to all humans.  Those people in distant lands, who are searching for such standards might very well enjoy those established and codified here, in our legal system.  Conversely, we might enjoy those established elsewhere, even if they may not be embodied in our own legal system and Constitution.

Richard E. Sansom