John Thomson: Thinking out loud

Noah Feldman writes about the Supreme Court and foreign policy this week for the New York Times Magazine. It’s an insightful piece that I find myself agreeing with, although a “strict constructionist” might not. He shares an insight on the law and Gitmo:

It is often said by liberal critics that Bush’s anti-terror policies ignored the Constitution and international law. But this is a misleading oversimplification. What the choice of Guantánamo
demonstrates, rather, is the profoundly legalistic way in which those policies were designed.

The real meat of the article is that there are two ways to look at interpreting global law: facing inward and outward. When concerned about the legitimacy of law by our own citizens within our borders, we look inward. The outward perspective looks at applying the ideals of our constitution to all people everywhere.

There is an important way in which neither of the predominant approaches to the Constitution and the international order can provide a fully satisfactory answer to the problem. Although they differ deeply about what the Constitution teaches, the two sides share a common image of what the Constitution is. Both imagine it to be a blueprint offering
a coherent worldview that will allow us to reach the best results most of the time. According to this shared assumption, the way to find the real or the true Constitution is to identify the core values that the document and the precedents stand for, and to use these as principles
to interpret the Constitution correctly.

This sounds a bit like something another Times columnist, Stanley Fish, might say. To some degree, interpreting law is a political game that is seated in the context in which the decision was made. Separating a 2002 decision from 9/11 is just as impossible as trying to apply a 2008 decision in a 1787 mindset.

One example that jumps to mind is “policy laundering,” where a law (let’s take copyright as our example) is driven by a treaty. As a country, we sign treaties that are interpreted as law, but the public most often has little say in their drafting. This seems like a “bad thing,” yet taking the outward view, one can see how at some level the treaties are designed to give more universal protection to content owners. Some may disagree with me, but I would say adhering to the Geneva Convention is a “good thing.” There are probably grounds we could come up with for reconciling this difference, but on the surface it seems political. That’s why I’m inclined to agree with Feldman’s assertion that we need to balance both views:

The truth is that we have had an inward- and outward-looking Constitution by turns, depending on the needs of the country and of the world. Neither the text of the Constitution, nor the history of its interpretation, nor the deep values embedded in it justify one answer
rather than the other.