Four Mistakes on the Debate on "Outsourcing Authority"

I. INTRODUCTION It is a great honor for me to participate in this symposium on outsourcing authority and to share the podium with such luminaries as Mark Tushnet, Ken Kersch, Susan Karamanian, John Baker, and John McGinnis. Albany Law School has been a wonderful host and sponsor of this symposium. It has chosen a felicitous name to address a theme that is one of the more interesting in current discussions about constitutional interpretation. As a skeptic of constitutional comparativism, I come to the debate from a surprising background. Most skeptics of the use of constitutional comparativism are not steeped in international law and do not describe themselves as international law scholars. But I, on the other hand, received my L.L.M. in international law from the University of Edinburgh, worked in international tribunals on two previous occasions in two European countries, and practiced public and private international law in Washington, D.C. The better part of my professional career has focused on international law. Accordingly, my skepticism is not about international law per se, but rather about the misuse of international law. Much of my skepticism pertains to my sense of how constitutional decision-making should be undertaken. (1) But it also relates to my understanding of the purpose of international law. International law functions best as a bracketed discipline that recognizes its own limits. When international law overreaches, it is met with deep skepticism. The frequent refrain I hear from lay skeptics about Lawrence v. Texas (2) and Roper v. Simmons (3) is "what possible relevance does some modern international treaty have for judges trying to interpret the text of our Constitution which was adopted over 200 years ago?" The criticism reflects a quite respectable and strong impression that international law is arrogantly overreaching, transgressing its proper role as a bracketed discipline. If you will allow an imperfect analogy, the discipline of science functions so marvelously well because it focuses on discrete scientific questions and eschews metaphysical questions. Of course, no scientist lives in a philosophical or ethical vacuum, but the hard sciences are successful because they have the discipline to focus on scientific questions. The renowned theoretical physicist John Polkinghorne has written much about this intersection between the physical and the metaphysical world. (4) On the interaction between science and religion, he writes that science and religion are "partners in the great human quest to understand reality." (5) He then suggests that there are varieties of interaction that might arise between the two disciplines, including conflict, (6) independence, (7) dialogue, (8) integration, (9) consonance, (10) and assimilation. (11) These interactions represent a spectrum of possible relationships in the ongoing debate about the intersection of science and religion. I find Polkinghorne's taxonomy useful in the current debate about outsourcing authority. One might say that with the growing prominence of international law and the proliferation of global constitutionalism, we are struggling to understand the interaction between our own cherished constitutional liberties and the growing body of international and global constitutional law. In short, the question to be raised is how do we understand constitutional law in an international age? In my view, we need not embrace the most hostile approach of conflict or independence. We could and should have fruitful, good-faith dialogue between international law and constitutional law. The two disciplines are largely harmonious, for obviously the treaties we sign and the Constitution we honor are not incongruous. Likewise, our tradition of affording constitutional protections informs the content of our state practice under customary international law. Nor can you understand certain constitutional provisions, such as the "declare war" clause, without an appreciation for international or comparative law. …