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“A Shining City on a Hill”: American Exceptionalism and the Supreme Court’S Practice of Relying on Foreign Law

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“A Shining City on a Hill”: American Exceptionalism and the Supreme Court’S Practice of Relying on Foreign Law “A SHINING CITY ON A HILL”: AMERICAN EXCEPTIONALISM AND THE SUPREME COURT’S PRACTICE OF RELYING ON FOREIGN LAW ∗ STEVEN G. CALABRESI INTRODUCTION ............................................................................................. 1336 I. THE SUPREME COURT AND FOREIGN SOURCES OF LAW: TWO CENTURIES OF PRACTICE................................................................... 1341 II. THE AMERICAN IDEOLOGY OF EXCEPTIONALISM: FOUR CENTURIES OF EXCEPTIONALIST RHETORIC AND SELF-DEFINITION . 1344 A. The Origins of American Exceptionalism in Europe and the American Colonies .................................................................... 1345 B. American Exceptionalism in the Founding Era......................... 1352 C. American Exceptionalism in the Nineteenth Century................ 1359 D. American Exceptionalism in the Twentieth Century.................. 1366 III. THE REALITY OF AMERICAN EXCEPTIONALISM: A SUMMARY OF SOME OF THE WAYS IN WHICH THE UNITED STATES HAS BECOME AN EXCEPTIONAL NATION................................................................. 1373 A. Observations of Foreign Travelers............................................ 1374 B. The Ideology of Being an American .......................................... 1375 1. Crime and Divorce Rates..................................................... 1375 2. Patriotism and Optimism..................................................... 1376 C. Social Egalitarianism and Libertarian Economics ................... 1377 D. Religion ..................................................................................... 1379 E. A Moralistic Country................................................................. 1382 1. Prohibition of Alcohol, Drugs, and Smoking...................... 1384 2. American Moralism and the Paranoid Style........................ 1385 F. Private Philanthropy ................................................................. 1386 G. Small Public Sector ................................................................... 1387 H. No Socialists, Anti-Union Sentiment, and a Large Conservative Movement ............................................................ 1389 I. Military and Foreign Affairs Power.......................................... 1392 ∗ George C. Dix Professor of Constitutional Law, Northwestern University. Copyright 2006. All rights reserved. Portions of this Article were presented on April 22, 2006, for a panel on “The Relevance of International Sources of Law,” at a symposium sponsored by the Boston University School of Law on “The Role of the Judge in the Twenty-First Century.” I would like to express my appreciation for helpful comments on this piece to: Gary Lawson, John McGinnis, Al Alschuler, Vicki Jackson, Gerald Neuman, Sandy Levinson, the participants in the Northwestern University School of Law Faculty Workshop series, the attendees at the 2006 Federalist Society Law Student Convention, and the participants in the Boston University School of Law symposium with which this Article is being published. 1335 1336 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:1335 J. Demography .............................................................................. 1393 K. Geography ................................................................................. 1395 L. Summary.................................................................................... 1396 IV. THE CONSTITUTION AS THE FOCAL POINT OF THE AMERICAN CREED OF EXCEPTIONALISM ............................................................. 1397 A. The Constitution as the Ark of the Covenant............................. 1398 B. Public Reverence for the Constitution....................................... 1400 C. Constitutional Doctrine and American Exceptionalism ............ 1405 V. A TALE OF TWO CULTURES............................................................... 1410 CONCLUSION................................................................................................. 1414 INTRODUCTION For wee must consider that wee shall be as a citty upon a hill. The eies of all people are uppon us. Soe that if wee shall deale falsely with our God in this worke wee haue undertaken, and soe cause him to withdrawe his present help from us, wee shall be made a story and a by-word through the world.1 And how stands the city on this winter night? . After 200 years, two centuries, she still stands strong and true on the granite ridge, and her glow has held steady no matter what storm. And she’s still a beacon, still a magnet for all who must have freedom, for all the pilgrims from all the lost places who are hurtling through the darkness, toward home.2 This is a tale of two cultures. The first culture is that of the United States Supreme Court and the lawyerly elite. In that culture, it is not only socially acceptable for the Court and law professors to rely on foreign law in deciding American cases, it is obligatory that they do so. Operating within the confines of this elite culture, the Justices have cited foreign law to strike down unconstitutional laws since at least the time of Chief Justice Warren’s famous 1958 plurality opinion in Trop v. Dulles.3 More strikingly, the Court has relied on foreign law in deciding U.S. constitutional cases since Dred Scott v. Sandford4 and arguably since the Marshall Court era. The Supreme Court’s all-encompassing practice of relying on foreign law is reflected in some of the most famous and consequential Supreme Court cases in American history concerning such important areas of jurisprudence as federalism, separation of powers, criminal law, criminal procedure, and even economic liberty. In the 1 John Winthrop, A Modell of Christian Charity (1630), in SETTLEMENTS TO SOCIETY: 1584-1763, at 66, 68 (Jack P. Greene ed., 1966). 2 President Ronald Reagan, Farewell Address to the Nation, 2 PUB. PAPERS 1718, 1722 (Jan. 11, 1989) [hereinafter Reagan, Farewell Address]. 3 356 U.S. 86 (1958). 4 60 U.S. (19 How.) 393 (1856). 2006] “A SHINING CITY ON A HILL” 1337 elite culture of the U.S. Supreme Court, referring to foreign law to determine the scope of U.S. constitutional rights is commonplace.5 The other culture that this Article will discuss is the popular culture of the vast majority of American citizens, as shaped by those citizens’ political leaders and opinion elites. In this second culture, there is a decidedly different view of the relationship between the United States and foreign legal systems. American popular culture overwhelmingly rejects the idea that the United States has a lot to learn from foreign legal systems, including even those of countries to which we are closely related like the United Kingdom and Canada.6 Most Americans think instead that the United States is an exceptional country that differs sharply from the rest of the world and that must therefore have its own laws and Constitution. I will show that this idea – that America is an exceptional nation, with an exceptional people and an exceptional role to play in the world – is deeply rooted in American history. American mass culture is thus sharply at odds with the Supreme Court’s elite lawyerly culture on the issue of whether U.S. courts have a lot to learn from foreign law. Moreover, I will show that not only do Americans think of the United States as an exceptional country, but it has actually become an exceptional country as it has attracted immigrants with a unique constellation of ideological beliefs. Americans are more individualistic, more religious, more patriotic, more egalitarian, and more hostile to unions and Marxism than are the people of any other advanced democracy. This positive account of the ways in which the United States truly is exceptional will call into question the practicality and wisdom of our Supreme Court imposing foreign ideas about law on us. As Justice Scalia said about efforts to import British law into U.S. constitutional law, “[i]t is beyond comprehension why we should look, for that purpose, to a 5 For commentary favorable to this trend, see Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 HARV. L. REV. 109, 109-12 (2005) (characterizing the Supreme Court’s recent practice of referring to foreign sources of law as a return to earlier practice and arguing that “the Constitution can best be viewed as a site of engagement with the transnational, informed but not controlled by consideration of other nations’ legal norms and the questions they put to interpreters of our specifically national constitution”). For important critical commentary, see John O. McGinnis, Foreign to Our Constitution, 100 NW. U. L. REV. 303, 306-09 (2006) (arguing that “foreign and international law should not generally be used as legal authority in constitutional interpretation” because of its tendency to frustrate democratic norms); Joan L. Larsen, Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 OHIO ST. L.J. 1283, 1284-87 (2004) (expressing alarm at the Supreme Court’s recent practice of citing to foreign sources of law without offering adequate justification or discussion). 6 See Steven G. Calabresi & Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 WM. & MARY L. REV 743, 752-53 (2005). 1338 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:1335 country that has developed, in the centuries since the Revolutionary War – and
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