Posted by Eugene Volokh:
Decent Respect:
http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118771032
Should U.S. judges and U.S. politicians follow the views of
"international opinion" on certain subjects? People who say yes often
appeal to the Declaration of Independence's reference to what "a
decent respect for the opinions of mankind" requires us to do.
But, as Eugene Kontorovich, a lawprof at George Mason, [1]points out,
in an eminently readable 8-page article (emphasis added),
[The Declaration] shows that we should follow our own opinions,
even when they diverge from the dominant views of Europe. Indeed,
throwing off the rule of a sovereign monarch contradicted the
dominant opinion of mankind. Thus the Declaration takes the view
that all we owe to other nations is to explain our actions to them.
Moreover, the Declaration was specifically drafted as an appeal for
arms and money. The Founders understood that these would only be
forthcoming if Britain�s Continental enemies thought the Colonists
were committed to the fight for the long haul. Thus the �opinions�
in question are opinions about the likely perseverance of the
Colonists, not the legality of their rebellion. And the �mankind�
in question is France and Spain.
If the Declaration reveals anything about the relevance of foreign
law to constitutional interpretation . . . it suggests that the
Founders� interest in the �opinions of mankind� did not involve
their opinions on the legality of American actions. . . .
Well put -- and in retrospect obvious, though it's the sort of obvious
that people often miss (as I'm afraid I had until I read Kontorovich's
piece).
References
1. http://www1.law.ucla.edu/~volokh/decentrespect.pdf
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