restricted access Chapter 9. Integrity-Anxiety?
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Chapter 9 Integrity-Anxiety? F R A N K I . M I C H E L M A N Introduction Twenty years ago, talk of American exceptionalism in the field of human rights would doubtless have been tinged, at least, with congratulation; these days, maybe not. Spoken today, the term probably insinuates a degree , at least, of insularity and smugness.1 Consider the movement dubbed “judicial globalization” by one of its chroniclers.2 Ever more widely and regularly, judiciaries in democracies abroad have been treating each other’s judgments as required reading in the work of domestic or regional bill-of-rights adjudication. From this movement the American Supreme Court has stood noticeably aloof, thus earning itself a mildly pariah status, at least in globalist circles. In their daily work of applying the guarantees in our Constitution’s Bill of Rights to contested cases, our judges, by and large, have proceeded with what has been called a “parochial” disregard for parallel human-rights interpretations occurrent elsewhere in the world.3 “Parochial” is not a term of endearment. (One might, after all, have spoken, more colorlessly, of “legal particularism.”)4 Assertions of various sorts of exceptionalist chiseling by the United States are in the air. Do Americans (Grenada? Iraq?) claim undeserved, special privileges to act unilaterally against human rights violations abroad? Do Americans (the International Criminal Court?) obnoxiously 1 But see Harold Hongju Koh, “Foreword: On American Exceptionalism,” Stanford Law Review 55 (2003): 1479–1527, at 1480 (speaking of “the negative and the overlooked positive faces of American exceptionalism”). 2 See Anne-Marie Slaughter, “Judicial Globalization,” Virginia Journal of International Law 40 (2000): 1103–24; Anne-Marie Slaughter, “A Global Community of Courts,” Harvard Journal of International Law 44 (2003) 191–219. 3 Slaughter, “Globalization,” supra note 2, at 1117–18; see Lorraine E. Weinrib, “Constitutional Conceptions and Constitutional Comparativism,” in Defining the Field of Comparative Constitutional Law, ed. Vicki C. Jackson and Mark Tushnet (Westport, CT: Praeger, 2002), 3–34, at 4 (“The constitutional jurisprudence of the United States has remained remarkably untouched by the new comparative constitutionalism”). 4 See Sujit Choudhry, “Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation,” Indiana Law Journal 74 (1999): 819–92, at 830. F RA NK I. MI CH EL MA N 242 resist submission of the conduct of U.S. agents or citizens to international systems of human rights inspection or control? Do Americans (the Convention on the Rights of the Child?) unreasonably withhold adherence from widely accepted and appealing international instruments setting human-rights standards meant to govern domestic lawmaking? Those who find some substance in such charges may be prone to view the behaviors they describe as all stemming from a single, underlying attitudinal or behavioral complex—“exceptionalism,” to wit—for which a single, social-psychological explanation may reasonably be sought, say, in terms of U.S. geopolitical situation past and present, U.S. culture past and present, or some combination thereof. The papers in the surrounding collection certainly do not rule out that sort of interpretation. Nor will this one. They do, though—as this will—show a receptiveness to more particularized sorts of explanations, opening the possibility that the sundry forms of “exemptionalist” behavior named, for example, in Michael Ignatieff’s typology5 are severally explainable by an assortment of different motives and other causes. Focusing on the American judiciary’s widely observed tendency—perhaps recently relaxed, as we’ll soon be considering —to disdain comparative study when engaged in construing our legally operative, domestic commitments in the field of rights, this chapter considers a line of possible explanation that would have little application to the other items on Ignatieff’s charge sheet. Note that the precise question here is not about any reluctance by the U.S. judiciary to treat positive-legal norms launched or pronounced from abroad as “a part of our law.”6 It is not, that is, about our judiciary’s responses to claims that one or another transnational norm has become a binding rule of decision for American courts by force of treaty, convention , or some positive rule of U.S. or state law that directs the incorporation of customary international legal norms into U.S. domestic law, as components of that law.7 Our concern is with the American judiciary’s transactions with legal norms understood by all to have a strictly local provenance in what we call American constitutional law. Granted, it’s not a clearly settled...


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