Every international student at Yale notices something different about American culture. For some, it’s the gigantic sizes of sodas or the bombardment of advertisements. For others, it’s the incessant pop music at parties or generally the inability to find foreign countries on a map. The most interesting Americanism for me (as an American born abroad) has to be the unique zeal many Americans have for their country. More specifically, the unique passion for the Constitution. I have learned more about this phenomenon this term through the renowned course “Constitutional Law” taught by professor Akhil Amar ’80 LAW ’84, who often claims: “The U.S. Constitution is nothing less than the hinge of history!” The problem though with such devotion, such nationalistic reverence for the Constitution is that it culminates in something Supreme Court Justice Stephen Breyer pointed out when he visited Yale Law School earlier this month. Although he never made the explicit connection between patriotism and legal isolationism, Breyer has begun to advocate for a more comprehensive, international outlook of the Constitution. This is a good idea.
Justice Breyer lays out this simple argument in his latest book “The Court and the World: American Law and the New Global Realities.” In an increasingly interconnected world, where commerce between nations happens instantaneously online, where public threats like epidemics and terrorism can move quickly between different countries, the highest court in the land needs to extend its judicial purview beyond domestic borders and consider foreign case law. What is surprising is not the actual argument he puts forward; it is a cool, legal assessment of the globalized reality the U.S. finds itself in. The real shock is just how unoriginal this argument is anywhere else except the U.S.
We do not have to go much farther than one of our own professors at the Law School to see why. Aharon Barak, former chief justice of Israel, soberly told those who went to Breyer’s talk last week that such a book would be unthinkable to write in his homeland. Not because it was a radical concept, but because it was the very opposite: a blase aphorism that the lowliest Israeli law clerk takes for granted. One might counter that Israel is a unique country that is particularly susceptible to world pressure, and thus needs to take into account international law, if only to appease critics. This argument has no weight. Think only of America’s grand presence on the world stage and see how much more this contention should compel the U.S. to incorporate international law.
Those who question the legitimacy or applicability of international law in domestic concerns should look to my home country of South Africa for guidance. South Africa has one of the most progressive and democratic constitutions ever written, a necessary outcome of a country that deliberately shifted from a police state to a human-rights based democracy. The constitution has specific provisions that allow the justices on the Constitutional Court to consider both international and intra-national law in their judgements. The impact of such constitutional drafting had immediate effects. In the first ruling of State v. Makwanyane in 1995, the court ruled that the death penalty was unconstitutional, drawing significantly on foreign case law. The court interpreted a large corpus of American law to determine whether the death penalty was “cruel, inhumane or degrading punishment” as prohibited under the South African Constitution. (Yes, the astute observer will note the similarity of such a clause to one in the Eighth Amendment) The court further based its ruling on analysis of the International Covenant on Civil and Political Rights, the European Convention on Human Rights, capital punishment practices in India and a whole tome’s worth of precedents taken from all over the world. Something important to keep in mind: Though much of the legal reasoning was based on foreign law, it ultimately had to conform with the South African Constitution, thus ensuring the applicability of common international principles while maintaining judicial sovereignty.
For far too long, American constitutional law has isolated itself to its own detriment. The well-intentioned pride of Americans in their founding document has fostered a sense of inviolable constitutional autonomy. The reality is that the free flow of legal thought is one of the great boons of the modern age. The American Constitution established the preeminence of written constitutions several centuries ago. Now how much better would its interpreters judge, if allowed to follow the law of its descendants?
Adam Krok is a freshman in Saybrook College. Contact him at firstname.lastname@example.org .