A internacionalização da Corte Suprema americana

O Professor Farlei Martins envia-nos esta excelente matéria circulando no "New York Times" de domingo 28 de setembro de 2008 a respeito da internacionalização da Corte Suprema.

When Judges Make Foreign Policy
By NOAH FELDMAN
Every generation gets the Constitution that it deserves. As the central
preoccupations of an era make their way into the legal system, the Supreme
Court eventually weighs in, and nine lawyers in robes become oracles of our
national identity. The 1930s had the Great Depression and the Supreme Court's
"switch in time" from mandating a laissez-faire economy to allowing New Deal
regulation. The 1950s had the rise of the civil rights movement and Brown v.
Board of Education. The 1970s had the struggle for personal autonomy and Roe
v. Wade. Over the last two centuries, the court's decisions, ranging from
the dreadful to the inspiring, have always reflected and shaped who "we the
people" think we are.

During the boom years of the 1990s, globalization emerged as the most
significant development in our national life. With Nafta and the Internet
and big-box stores selling cheap goods from China, the line between national
and international began to blur. In the seven years since 9/11, the question
of how we relate to the world beyond our borders - and how we should - has
become inescapable. The Supreme Court, as ever, is beginning to offer its
own answers. As the United States tries to balance the benefits of
multilateral alliances with the demands of unilateral self-protection, the
court has started to address the legal counterparts of such existential
matters. It is becoming increasingly clear that the defining constitutional
problem for the present generation will be the nature of the relationship of
the United States to what is somewhat optimistically called the
international order.

This problem has many dimensions. It includes mundane practical questions,
like what force the United States should give to the law of the sea. It
includes more symbolic questions, like whether high-ranking American
officials can be held accountable for crimes against international law. And
it includes questions of momentous consequence, like whether international
law should be treated as law in the United States; what rights, if any,
noncitizens have to come before American courts or tribunals; whether the
protections of the Geneva Conventions apply to people that the U.S.
government accuses of being terrorists; and whether the U.S. Supreme Court
should consider the decisions of foreign or international tribunals when it
interprets the Constitution.

In recent years, two prominent schools of thought have emerged to answer
these questions. One view, closely associated with the Bush administration,
begins with the observation that law, in the age of modern liberal
democracy, derives its legitimacy from being enacted by elected
representatives of the people. From this standpoint, the Constitution is
seen as facing inward, toward the Americans who made it, toward their rights
and their security. For the most part, that is, the rights the Constitution
provides are for citizens and provided only within the borders of the
country. By these lights, any interpretation of the Constitution that
restricts the nation's security or sovereignty - for example, by extending
constitutional rights to noncitizens encountered on battlefields overseas -
is misguided and even dangerous. In the words of the conservative legal
scholars Eric Posner and Jack Goldsmith (who is himself a former member of
the Bush administration), the Constitution "was designed to create a more
perfect domestic order, and its foreign relations mechanisms were crafted to
enhance U.S. welfare."

A competing view, championed mostly by liberals, defines the rule of law
differently: law is conceived not as a quintessentially national phenomenon
but rather as a global ideal. The liberal position readily concedes that the
Constitution specifies the law for the United States but stresses that a
fuller, more complete conception of law demands that American law be
pictured alongside international law and other (legitimate) national
constitutions. The U.S. Constitution, on this cosmopolitan view, faces
outward. It is a paradigm of the rule of law: rights similar to those it
confers on Americans should protect all people everywhere, so that no one
falls outside the reach of some legitimate legal order. What is most
important about our Constitution, liberals stress, is not that it provides
rights for us but that its vision of freedom ought to apply universally.

The Supreme Court, whose new term begins Oct. 6, has become a battleground
for these two worldviews. In the last term, which ended in June, the
justices gave expression to both visions. In two cases in particular - one
high-profile, the other largely overlooked - the justices divided into
roughly two blocs, representing the "inward" and "outward" looking
conceptions of the Constitution, with Justice Anthony Kennedy voting with
liberals in one case and conservatives in the other. The Supreme Court is on
the verge of several retirements; how the justices will address critical
issues of American foreign policy in the future hangs very much in the
balance.

This may seem like an odd way of thinking about international affairs. In
the coming presidential election, every voter understands that there is a
choice to be made between the foreign-policy visions of John McCain and
Barack Obama. What is less obvious, but no less important, is that Supreme
Court appointments have become a de facto part of American foreign policy.
The court, like the State Department and the Pentagon, now makes decisions
in cases that directly change and shape our relationship with the world. And
as the justices decide these cases, they are doing as much as anyone to
shape America's fortunes in an age of global terror and economic turmoil.

What Conservatives Understand About International Law

The debate between inward-looking conservatives and outward-looking liberals
has recently taken a turn toward the shrill. Liberal lawyers do not simply
accuse their conservative counterparts of denigrating the rule of law; they
accuse them of violating it themselves. Calling last spring for the firing
of the tenured Berkeley professor John Yoo, an architect of the Bush
administration's legal strategy in the war on terror, Marjorie Cohn, the
president of the National Lawyers' Guild, declared that "Yoo's complicity in
establishing the policy that led to the torture of prisoners constitutes a
war crime under the U.S. War Crimes Act."

The conservatives' arguments are no less heated: not only, they contend, do
liberals paint a naïvely romantic picture of the world - one in which the
United Nations and its agencies and courts would make law for Americans -
but liberals are also endangering American lives. Dissenting this past June
from the Supreme Court decision giving those held at Guantánamo Bay a right
to challenge their detention, Justice Antonin Scalia wrote that the majority's
ruling "will almost certainly cause more Americans to be killed."

These sorts of accusations are overstated and unhelpful. Neither the liberal
nor the conservative view corresponds to the stereotype assigned to it by
its opponents. Notwithstanding their limitations, both views express values
that are deeply grounded in the American constitutional tradition and in the
rule of law. Each is necessary to help us make sense of the Constitution's
role in an increasingly complex global world.

Consider first the conservative vision, which is sometimes called
"sovereigntist" because it emphasizes the power and prerogative of the
United States to act as if it is responsible to no one but itself. The Bush
administration, through its characteristic combination of boldness,
historical ambition and operational incompetence, has given sovereignty a
bad name, much as it has for unilateralism. But the constitutional principle
here is actually one that most liberals also fully embrace: namely, the
principle of democracy.

International law, as even its staunchest defenders must acknowledge, often
fails to accord with democratic principle. Such law is not passed by a
democratically elected Congress and signed by a democratically elected
president. It is true that the U.S. Constitution says that international
treaties signed by the president and approved by the Senate shall be the
supreme law of the land, thereby conferring some democratic legitimacy on
treaties. But a great deal of international law derives not from treaties
signed by consenting nations but rather from the vague category of
international custom, which over time can harden into binding law. For
hundreds of years, until more formal treaties were adopted, custom was the
main way international law was created, giving rise to the laws of war, for
instance, and condemning terrorism and torture. Even today, the existence of
a treaty among only a select group of nations can be invoked in
international forums as evidence of an established custom - and
nonparticipating countries can come to be bound by treaties that they
themselves never signed.

To conservatives, such international "law" is anathema. Even in cases in
which explicit treaties among nations do exist, conservatives worry. Such
treaties, after all, are increasingly interpreted by nondemocratic
institutions like tribunals of the World Trade Organization or the United
Nations' International Court of Justice. Two hundred years ago, treaties
tended to be simple agreements between two parties, with each reserving the
right to interpret (and, if necessary, enforce) the treaty's terms for
itself. Today, though, many of the most important treaties - those governing
trade, the environment and other crucial matters - involve a large number of
nations that agree as a condition of the treaty to be bound by the decisions
of an international body. To sign on to such a treaty, conservatives point
out, confers future lawmaking authority on some unelected and thus
undemocratic body.

According to the sovereigntists, the United States, faced with such
undemocratic regimes, should feel free to reject any undesirable verdict of
a body like the International Court of Justice and embrace a policy more in
line with U.S. interests - much in the way that Israel responded to the
I.C.J.'s condemnation of the path of its security barrier on the West Bank.
In a world where Libya can lead an international human rights commission, no
international institution is free from the distortions that arise when all
countries are treated as equals. Even within the distinguished higher
echelons of the United Nations or European Union, there is a risk that
bureaucrats may pursue policies that reflect the values and priorities of
their own technocratic classes. The worst-case scenario, from the
perspective of the conservatives, is one in which enemies of the United
States engage in "lawfare," opportunistically charging the country with
violations of international law to impede it from rightfully ensuring its
safety.

Another key sovereigntist principle is the right of the United States, when
acting abroad, to protect itself, whether fighting wars or preventing
terrorist attacks. Historically, the court has given the president, as
commander in chief, great latitude to act abroad as he sees fit. In
situations in which Congress has explicitly authorized the president's
action, the court has recognized the prerogative as almost absolute. For
instance, when the United States acquired Puerto Rico, Guam and the
Philippines in the Spanish-American War, the Supreme Court allowed Congress
and the president to govern those territories without extending
constitutional rights to the residents. Similarly, after World War II, when
Germans held by the United States in occupied Germany pending war-crimes
charges petitioned for judicial review, the Supreme Court turned them away.

Conservatives argue, not implausibly, that these historic decisions did not
undermine the rule of law: they embodied it. The Supreme Court's judgments
derived, after all, from the Constitution itself and its own democratic
pedigree. One central reason that the people of the United States formed the
Constitution was in order to provide for the common defense. The
Constitution does protect rights, according to this view - but they are the
rights of citizens, not the rights of mankind in general or of foreigners
who have never even set foot in the United States.

What Liberals Understand About International Law

From the liberal perspective, the vision espoused by the conservatives is
crabbed and parochial. Of course the Constitution demands democracy and
gives rights to American citizens. But, say the progressives, that does not
explain why over the last two centuries the Constitution has become the very
model of what a system of government under law looks like. The key to the
Constitution's global appeal, according to the liberal view, is that the
document stands for the universal principle that state power over
individuals may only ever be exercised through law - no matter what
government is acting, and no matter where on earth.

This outward-looking, "internationalist" conception of the Constitution
respects the sovereignty of the United States and that of other countries -
provided they deliver a just legal order to their citizens. But liberals
point out that even a constitutional state that guarantees rights for its
own citizens will not protect people in many places and times, often when
rights are most sorely needed. In wartime, for instance, almost no nation
will have an interest in protecting the rights of foreign enemies that it
encounters. On the open seas, no domestic law applies. And for reasons of
sheer practicality, no country's laws regulate all its potential relations
with all other states. To cover situations like these, where domestic law
runs out of rope, is the task of international law. Such law seeks to ensure
rights for all, not by replacing the domestic law of independent nations but
by holding it to standards of universal justice and by supplementing it
where it is incomplete or inadequate.

From this perspective, international law is necessary to ensure that the
rule of law will actually obtain in situations where individual states do
not provide it. This is why, for liberals, it is essential that the United
States comply with its international obligations. The framers of the
Constitution were certainly eager to demonstrate such compliance. When they
made treaties the law of the land, they were saying - according to an
interpretation of Chief Justice John Marshall's that dates back to 1829 -
that the moment the Senate ratifies a treaty, it automatically becomes the
supreme law of the land, binding in every court in the nation.

Deepening their historical argument, the liberals also point out that from
the earliest days of the United States, the nation's courts applied
customary international law, regularly deciding who owned ships captured on
the high seas according to immemorial practice that was not found in any
treaty. What is more, the framers' reliance on international law and custom
went to the very heart of their constitutional endeavor: what, otherwise,
did the framers mean when they spoke in the Constitution about the
declaration of war, or about letters of marque and reprisal, or about
judicial authority over ambassadors?

In practice, the internationalist camp argues for the prudent use of
international legal materials in constitutional decision-making - not only
for purposes of rhetoric and persuasion but also to provide rules and
principles to help actually decide cases. For example, liberals argue that
if the United States adopts laws designed to comply with the Geneva
Conventions, the government is obligated to follow the treaty to the letter
should the government invoke the authority to detain prisoners that the
treaty confers. Likewise, when the United States has undertaken to comply
with the decisions of international tribunals, those tribunals' rulings must
be treated as law, just as the treaties themselves are.

Liberals concede that the framers showed respect for international law, in
part, because their country was new and revolutionary, and they sought
legitimacy in the community of nations. But the liberal view stresses that
the tradition of respect continued even once the nation was well
established, and that it was kept alive by successive generations for
different but always compelling reasons. The United States helped found the
United Nations after World War II, for instance, at what was then the nation's
moment of greatest global power. Franklin Delano Roosevelt's idea, shared by
liberals then and now, was that the international rule of law was good not
just in principle but also in practice. As a country governed by law, we
were asserting the superiority of our system to others governed by
dictatorship. Moreover, since the United States was a permanent member of
the Security Council, any compromises to our national sovereignty were more
than outweighed by the tremendous benefits of having a legitimate
international legal order through which, as a superpower, it could assert
its will.

As liberals see it, being a leading exponent of the rule of law
internationally strengthens America's ability to pressure or bully other
countries to respect the rights of their own citizens. In this way, oddly
enough, the liberal view is consonant with certain aspirations of the Bush
administration. In Afghanistan, Iraq and beyond, President Bush has tried to
export liberal constitutionalism, including both elections and basic rights.
His "freedom agenda" is, in fact, a direct descendant of liberal
internationalism, a policy associated with Woodrow Wilson and his plans to
make the world safe for democracy through the work of international
institutions.

The Bush administration, of course, distrusts international organizations
that continue in the tradition of the League of Nations, which Wilson helped
to found (though he could not persuade his own country to join it). But Bush's
notion that America's democratic Constitution should be an inspiration for
the world is identifiably Wilsonian - as is the zeal to spread the good
word, voluntarily when possible but by force if necessary. If the greatest
tragedy of the Bush presidency is the enormous human cost of America's
ham-handed efforts to accomplish this worthy goal, a second, related tragedy
is that the spreading of constitutional democracy is rarely talked about
anymore as a liberal goal at all.

The Court's Liberal Victory

Each constitutional worldview - the one conservative and inward-looking, the
other liberal and outward-focused - has found exponents on the current
Supreme Court. This past spring, in two cases before the court, each side
won an important victory. The larger battle, however, was widely overlooked.
The liberal victory was widely publicized, but its full implications were
not often noted. As for the conservative win, its very existence went almost
entirely unnoticed.

The liberal victory, in the case of Boumediene v. Bush, took place against
the backdrop of the detentions of suspected terrorists at Guantánamo Bay,
Cuba. The detainees were being held there because the Bush administration's
lawyers were confident that, under the Supreme Court's precedent, the
detainees would not enjoy constitutional rights. Like the Germans denied
review after World War II, the detainees were noncitizens who were neither
arrested nor held in the United States. Guantánamo was leased from Cuba
under a 1903 treaty, so it was not in the United States, and yet there was
no tradition of applying Cuban law there.

In light of these circumstances, the Bush administration seemed to believe
it could treat Guantánamo as a law-free zone. Unlike Iraq, which the
administration conceded was a war zone in which the Geneva Conventions
applied, Guantánamo was initially considered legally off the grid. 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. Using
the law itself, the lawyers in the Bush administration set out to make
Guantánamo into a legal vacuum.

The court's decision in Boumediene repudiated that attempt. The majority,
led by Justice Kennedy, announced that for constitutional purposes,
Guantánamo Bay was part of the United States: the detainees there enjoyed
the same rights as if they had been held in Washington. The Boumediene
decision was chiefly the accomplishment of Justice John Paul Stevens, who
has made overturning the Bush detention policies into the legacy-defining
task of his distinguished career. In key opinions issued in 2004 and 2006,
Stevens chipped away at the special status asserted for Guantánamo, each
time referring the matter of judicial review for the detainees back to
Congress. But Congress repeatedly approved the administration's proposals to
deny access to the courts. To win the fight even against Congress, Stevens
needed Kennedy to provide the fifth vote and hold that denying the
Guantánamo detainees their day in court actually violated the Constitution.

The opinion that Kennedy wrote for the court's majority in Boumediene
announced squarely that the Constitution applied to the detainees being held
in Guantánamo. Kennedy insisted that he was not overruling the precedent of
the German detainees who were denied review. Unlike the situation with the
Germans after World War II, he argued, the Guantánamo detainees had not
received a hearing; the Guantánamo naval base was entirely under U.S.
control; and granting hearings was not so impractical that it would
fundamentally disrupt the operation of the prison. In effect, however,
Kennedy's opinion rejected what the Bush administration claimed to be the
rule that noncitizens held outside the United States were not entitled to
constitutional protection.

Having refused to overturn Roe v. Wade in the 1990s and having championed
gay rights in recent years, Kennedy may now be depicted as an unlikely
liberal hero - the latest in a line of Republican appointees (one of whom is
John Paul Stevens) who gradually evolved into staunch exponents of liberal
rights. The key to Kennedy's reasoning in the Guantánamo case was his
expansive conception of the rule of law. In the central paragraph of the
decision, Kennedy explained his underlying logic: if Congress and the
president had the power to take control of a territory and then determine
that U.S. law does not apply there, "it would be possible for the political
branches to govern without legal constraint," he wrote. Government without
courts, Kennedy suggested, was not constitutional government at all. "Our
basic charter," he went on, "cannot be contracted away like this."

What seemed to most offend Kennedy about Guantánamo, then, was precisely the
effort by the executive branch, with the approval of Congress, to make
Guantánamo into a place beyond the reach of any law. By insisting on its own
authority, the court was striking a blow for law itself. In this way, the
court embraced the ideal of the outward-looking Constitution: a document
that protects the rights not only of citizens within the United States but
also of noncitizens outside its formal borders. This Constitution, by
extension, stands for the ideal of legal justice being made available to all
persons - no matter where they might be.

Holding that the Constitution did indeed follow the flag to Guantánamo was
an act with tremendous international resonance. It can even be read as an
attempt to hold the Bush administration to its own rhetoric about democracy.
The rule of law, after all, is not solely an American ideal but one that is
broadly shared globally. To insist that some law covers all people wherever
they may be found underscores the universality that law aims to create.

The Court's Conservative Victory

From the conservative point of view, of course, Kennedy's decision did not
follow from the basic principle of the rule of law. According to the four
conservative dissenting justices, whose views closely tracked those of the
Bush administration, the Constitution unquestionably binds the government.
But according to their view, the Constitution also allows the president and
Congress, acting together, to lease or even acquire territory and govern it
without allowing recourse to the courts. Indeed, this view was precisely the
one adopted by the Supreme Court after the Spanish-American War, when the
United States was a rising imperial power. The dissenters in Boumediene
actually agree with the liberals that law does apply to Guantánamo; they
just maintain that the courts are not part of it.

The conservative cause may have lost in Boumediene. It prevailed, however,
in a case decided last March that garnered little public attention- but that
was, in its own way, just as important to defining our constitutional era.
The case, Medellín v. Texas, grew from a conflict between the Supreme Court
and the International Court of Justice over death-row inmates in the United
States who were apparently never told they had the right to speak to the
embassies of their home countries, a right guaranteed by a treaty called the
Vienna Convention on Consular Relations. The international court declared
that the violation tainted the inmates' convictions and insisted that they
have their day in court to try to get them overturned.

The Supreme Court disagreed. In his initial trial and appeal, José Medellín,
the man who brought the Supreme Court case, did not raise his right to speak
to his embassy - presumably because, having never been informed of the
right, he had no idea that it existed. Under the arcane rules for
postconviction judicial review, a defendant ordinarily cannot ask the courts
to consider legal arguments that were not raised when he was tried in the
first place. And in its decision, the court upheld those rules: the
violation of the treaty, it held, did not demand any special exception to
the usual rules governing review. The fact that the United States had
violated its international-treaty obligation was of no use on death row.
Medellín was executed by the State of Texas on Aug. 5.

What made this conflict between the Supreme Court and the International
Court of Justice particularly stark was that the Bush administration had for
once taken the side of international law. Before the Supreme Court issued
its opinion, President Bush issued a memorandum advising state courts to
follow the judgment of the International Court of Justice. With the ruling
of the Supreme Court on one side, and that of the international court -
endorsed by the president - on the other, just what did the Constitution
require the state courts to do?

The United States signed three separate treaties stating that it undertook
to obey the judgments of the International Court of Justice. But the Supreme
Court bridled at the thought that the international court's decision might
trump its own. This was not just instinctive turf-protection, though that
concern no doubt played a part. Never before had an international body
replaced the Supreme Court in telling lower courts in the United States that
their own procedural rules were unacceptable. The natural order of things
seemed to be turned on its head.

The Supreme Court held that the treaties obligating us to listen to the
International Court of Justice were not binding law. Chief Justice John
Roberts wrote that a careful reading of the text of the treaties revealed no
intention to subject the United States to the judgments of the international
court - not, that is, unless Congress passed a separate statute demanding
such obedience.

This opinion upended the rules for applying treaties in the U.S. courts. In
dissent, Justice Breyer painted a grim picture of the consequences. If
treaties were not automatically binding law unless they said so, he wrote,
the applicability of some 70 treaties involving economic cooperation,
consular relations and navigation was now thrown into doubt. The rest of the
world, he intimated, would be left wondering whether the United States
intended to obey its treaty obligations or not - which is not a trivial
concern when the world also suspects the United States of ignoring its
obligations of humane treatment under the Geneva Conventions. To Breyer, the
decision was a reversal of nearly 180 years of precedent and a message to
the world that the United States was prepared to play fast and loose with
its international commitments.

When the justices rejected the death-row appeal, they were acting on the
basis of familiar conservative concerns. The judges of the International
Court of Justice were not appointed according to any constitutional
procedure. To let the international body decide matters of law that would be
binding for state courts seemed fundamentally undemocratic - an unjust
usurpation of the judicial function. It would be absurd for the
Constitution, as the core document of our democracy, to require such a
result.

The old precedent regarding treaties was thus, according to the
conservatives, truly obsolete. It made no sense to apply it in a globalized
world where treaties are not just straightforward agreements between
sovereign states; now, they often create irresponsible international
tribunals to adjudicate their meaning. If the judgments of an international
court were to be obligatory, a democratically legitimate body should say so
explicitly - either the Senate that approved the treaty promising compliance
or the whole Congress in a separate legal enactment.

By its own lights, the Supreme Court in the Medellín case was reading the
Constitution to guarantee us control over our own destiny. That meant
turning away from international law in a systematic and profound sense. The
cost to the United States might be real, but the court considered it
justified by the preservation of our democratic sovereignty.

Which Side Is Right?

The Boumediene decision saw the Constitution as facing outward, expanding
and promoting the rule of law throughout the world. The Medellín decision,
by contrast, saw the Constitution as a domestic blueprint designed to
preserve and protect the United States from foreign encroachment, even at
some cost to the international rule of law.

Underscoring the tension between the two cases is the fact that nearly all
the justices of the Supreme Court voted consistently across both of them.
The four conservatives - Justices Antonin Scalia, Clarence Thomas, John
Roberts and Samuel Alito - dissented from the extension of habeas corpus
rights to Guantánamo Bay in Boumediene and joined the majority opinion in
Medellín that made it harder for treaties to become law. Meanwhile the court's
liberals - Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and
Stephen Breyer - joined the majority in the Guantánamo case, and all but
Stevens dissented in Medellín. (Though Stevens voted with the majority in
that case, he did so seemingly only for tactical reasons; he wrote a
separate, concurring opinion that did not embrace the logic of Roberts's
majority opinion.)

The key vote in both cases was that of Kennedy. In both cases, he acted to
uphold the prerogatives of the Supreme Court - against the president and
Congress in the Guantánamo case, and against the international court in the
Medellín decision. And Kennedy does argue that such judicial supremacy is
crucial to the rule of law. But the other justices did not see the cases in
those terms. To them, the cases were not primarily about the perennial issue
of the division of powers between the different branches of government. To
these eight justices, the cases were about what sort of Constitution we
have: either outward-facing or inward-looking.

Who is right? It is tempting to conclude that the Constitution must look
inward and outward simultaneously. But embracing contradiction is not the
answer, either. Instead what we need to resolve the present difficulty is a
subtle shift in perspective.

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.

There is nothing wrong with this picture of constitutional interpretation
when it is applied to the vast majority of constitutional decisions, from
the right to bear arms to the meaning of equal protection of the laws.
Deciding what deep principles emerge from our history can help resolve even
problems unimagined by the framers, like those presented by abortion or
claims to gay rights. Most of the time, constitutional interpretation
proceeds in precisely this way - and so it should.

But when we are talking about the basic direction the country needs to face
in order to achieve its goals in the modern world, deriving principles from
history is often inadequate to dictate outcomes. The national and global
situations in which we find ourselves are ever-changing. The ship of state
must navigate in waters that correspond to no existing chart. The complexity
of the world, coupled with the profound changes in the role the United
States plays in it, is a very different thing from, say, our progressive
recognition that African-Americans, women, gays and lesbians deserve the
same equality and respect as everybody else.

For this reason, when the world has changed drastically, the Constitution
has always had the flexibility to change along with it. The industrial
economy, for example, was so much bigger and more complex than the economy
of 1787 that the old constitutional order no longer worked. The New Deal
ushered in systematic regulation and administrative agencies that had no
real place in the three-branch system - but that we now accept as
constitutional today. The original federal system limiting the power of the
central government relative to the states also had to be reconfigured when
the economy became truly national. The changed nature of the president's war
powers offers yet another pragmatic example of flexibility and change.
Modern wars demand rapid decision-making and overwhelming concentrations of
force; in the light of these needs, we have largely abandoned the framers'
model for war powers, which gave Congress much more authority than it is
able to exercise today.

On each occasion that the Supreme Court has had to confront such drastically
changed circumstances, it has adopted the approach of seeing constitutional
government as an ongoing experiment. Justice Oliver Wendell Holmes Jr. wrote
that our system of government is an experiment, "as all life is an
experiment." Justice Robert Jackson, confronting the separation of powers -
about which the Constitution is cryptic at best - admitted frankly that
nothing in the document, the case law or the scholars' writings got him any
closer to an answer. Then he tried to come up with his own rules, designed
to reflect political reality and the changed nature of the presidency.

Looking at today's problem through the lens of our great constitutional
experiment, it emerges that there is no single, enduring answer to which way
the Constitution should be oriented, inward or outward. 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. In the face of such
ambiguity, the right question is not simply in what direction does our
Constitution look, but where do we need the Constitution to look right now?

Answering this requires the Supreme Court to think in terms not only of
principle but also of policy: to weigh national and international interests;
and to exercise fine judgment about how our Constitution functions and is
perceived at home and abroad. The conservative and liberal approaches to
legitimacy and the rule of law need to be supplemented with a healthy dose
of real-world pragmatism. In effect, the fact that the Constitution affects
our relations with the world requires the justices to have a foreign policy
of their own.

On the surface, it seems as if such inevitably political judgments are not
the proper province of the court. If assessments of the state of the world
are called for, shouldn't the court defer to the decisions of the elected
president and Congress? Aren't judgments about the direction of our country
the exclusive preserve of the political branches?

Indeed, the Supreme Court does need to be limited to its proper role. But
when it comes to our engagement with the world, that role involves taking a
stand, not stepping aside. The reason for this is straightforward: the court
is in charge of interpreting the Constitution, and the Constitution plays a
major role in shaping our engagement with the rest of the world. The court
therefore has no choice about whether to involve itself in the question of
which direction the Constitution will face; it is now unavoidably involved.
Even choosing to defer to the other branches of government amounts to a
substantive stand on the question.

That said, when the court exercises its own independent political judgment,
it still does so in a distinctively legal way. For one thing, the court can
act only through deciding the cases that happen to come before it, and the
court is limited to using the facts and circumstances of those cases to
shape a broader constitutional vision. The court also speaks in the idiom of
law - which is to say, of regular rules that apply to everyone across the
board. It cannot declare, for instance, that only this or that detainee has
rights. It must hold that the same rights extend to every detainee who is
similarly situated. This, too, is an effective constraint on the way the
court exercises its policy judgment. Indeed, it is this very regularity that
gives its decisions legitimacy as the product of judicial logic and
reasoning.

Why We Need More Law, More Than Ever

So what do we need the Constitution to do for us now? The answer, I think,
is that the Constitution must be read to help us remember that while the war
on terror continues, we are also still in the midst of a period of rapid
globalization. An enduring lesson of the Bush years is the extreme
difficulty and cost of doing things by ourselves. We need to build and
rebuild alliances - and law has historically been one of our best tools for
doing so. In our present precarious situation, it would be a terrible
mistake to abandon our historic position of leadership in the global spread
of the rule of law.

Our leadership matters for reasons both universal and national. Seen from
the perspective of the world, the fragmentation of power after the cold war
creates new dangers of disorder that need to be mitigated by the sense of
regularity and predictability that only the rule of law can provide.
Terrorists need to be deterred. Failed states need to be brought under the
umbrella of international organizations so they can govern themselves. And
economic interdependence demands coordination, so that the collapse of one
does not become the collapse of all.

From a national perspective, our interest is less in the inherent value of
advancing individual rights than in claiming that our allies are obligated
to help us by virtue of legal commitments they have made. The Bush
administration's lawyers often insisted that law was a tool of the weak, and
that therefore as a strong nation we had no need to engage it. But this
notion of "lawfare" as a threat to the United States is based on a
misunderstanding of the very essence of how law operates.

Law comes into being and is sustained not because the weak demand it but
because it is a tool of the powerful - as it has been for the United States
since World War II at least. The reason those with power prefer law to brute
force is that it regularizes and legitimates the exercise of authority. It
is easier and cheaper to get the compliance of weaker people or states by
promising them rules and a fair hearing than by threatening them constantly
with force. After all, if those wielding power really objected to the rule
of law, they could abolish it, the way dictators and juntas have often done
the world over.

On those occasions when the weak, using the machinery of courts, are able to
vindicate their legal rights, the reason their demands are honored is
generally that those who have the most influence in the system recognize it
is in their own long-term interest to make the concession. Those who
consider law a tool of the weak mistake these rare trade-offs for defeat,
when - from the perspective of power - they are simply part of the cost of
doing business. This is why, for example, the police and prosecutors embrace
the Miranda warnings: they require that defendants be read their rights. But
once the formality is satisfied, it is almost guaranteed that the defendants'
statements will be admissible into evidence.

Applying the lesson that the world and the United States need law more than
ever at this particular moment yields some specific conclusions. The
executive branch certainly should be accorded considerable leeway in
defending the nation from attacks by stateless groups like Al Qaeda. But it
was an error of constitutional dimensions to choose Guantánamo as a global
symbol of those efforts precisely because of the way it seemed to be outside
the reach of our domestic Constitution, the law of any other country or
international law itself.

The Supreme Court therefore was right to reinsert Guantánamo in the legal
grid - but not because this was definitively the best reading of the
constitutional materials, which were contradictory and indeterminate. What
justifies the decision is the practical necessity and importance of
reassuring the citizens of the United States and the world at large that the
United States had not given up the role it assumed after World War II as the
chief proponent of the rule of law worldwide. Not every Supreme Court
decision has this monumental symbolic effect - but the Boumediene case was
guaranteed to be seen as either a victory or a defeat for the very idea of
law itself. In an ideal world, the Supreme Court would not have had to send
this message, and it could have avoided the substantial expansion of its own
power to which it was driven by the foolishness of the Bush administration.

The Medellín case is trickier. On one hand, globalization inevitably inserts
us into an ever-widening array of treaty regimes, each with its own
mechanism of adjudication. There is no turning back the clock to the simpler
world of the framers. Joining the World Trade Organization, as we have, or
the Kyoto Protocol, as we ultimately have not, does detract from the
democratic legitimacy of the laws that govern us. This lesson can be easily
learned from a glance at the European Union, where countries increasingly
cede sovereign authority to the bureaucrats in Brussels. Under these
circumstances, there is much to be said for requiring either the treaty
ceding this authority to speak explicitly, or else for Congress to make this
concession expressly, in full view of the public who elects it.

On the other hand, there is the problem of timing. Had the United States not
invaded Iraq under a claim of international law that many other countries
rejected, or had the Guantánamo disaster been avoided by the exercise of
wiser judgment, it would be relatively easy to conclude that the Supreme
Court was right to pull us back from too rapid an entrance into an
international order that undercuts our sovereignty. But the treaty decision
came at just the moment when the United States was trying to reassert its
commitment to the rule of law internationally. The conservatives who carried
the day did not care. For them, upholding international judgments that
differ from our own courts' is inconsistent with our core constitutional
values. The message sent, then, in the world and at home, is precisely the
wrong one for this historical juncture, when the United States needs - at
least for the moment - to convince the world that the project of
international legality is one in which we believe.

What the Election May Bring

There are going to be many more opportunities in the coming years for the
court to take a position on the Constitution and the international order.
Should John McCain become president, there is good reason to believe he
would be more committed than President Bush to the international rule of
law. Influenced by his experience of being tortured in Vietnam, McCain has
sponsored legislation requiring that U.S. government personnel comply with
the Geneva requirement of humane treatment of prisoners. Yet McCain has also
snubbed Justice Kennedy, promising to nominate justices like Roberts and
Alito in their ideological orientation; justices of this persuasion are
likely to see the Constitution in largely inward-looking terms.

Meanwhile, Barack Obama, with his globalized upbringing and insistence on
multilateralism, could be expected, as president, to nominate justices more
sympathetic to an outward-looking Constitution. But if, as seems likely, the
first retirees from the court are liberals, the best Obama could hope for
would be to maintain the status quo - not to institutionalize a liberal
majority for the future.

Whichever candidate is elected, once the Bush administration is out of
office, the war on terror will almost certainly be waged differently, and
the constitutional issues that arise will not be exactly the same as before.
Guantánamo Bay will probably be closed, and the legal team that planned it
will be long gone. But most of its detainees will still have to be tried,
and their appeals will reach the Supreme Court once again. Of course we will
still want to catch terrorists - especially before they act - and we will
have to figure out what to do with them when we do. No matter who is
president, the United States will still find itself deeply enmeshed in the
affairs of Afghanistan, even if in the next few years there are substantial
troop withdrawals from Iraq.

At the same time, the processes of globalization have not been turned back
by the war on terror. The growing global financial crisis calls for more
international regulation, not less. Conflicts between U.S. courts and
international tribunals about the meaning of our international obligations
are going to become more and more common, just as they have become for
members of the European Union. Next time, the Supreme Court may not be able
to avoid conflict by asserting that the courts are not obligated to listen
to the international body. When that happens, new doctrines and solutions
are going to have to be developed.

In these all-important processes, as always in the history of the court,
people are everything. Justices vary widely in temperament, ideology,
intelligence and preparedness. The best justices can be really very
impressive; the worst ones truly disastrous.

Charged with interpreting the Constitution and therefore shaping its
contemporary orientation, the Supreme Court needs to be extraordinarily
sensitive to the demands of history. When the court gets it wrong, the
consequences can be serious. The Constitution we get will still be the one
we deserve, but our deserts need not be good ones. The Constitution, let us
not forget, gave us slavery and segregation. It gave us dysfunctional
limitations on progressive legislation that was desperately needed in the
years before the Great Depression. We like to think the Constitution is
always leading us toward a more perfect union. But this has not always been
the case, and as with any experiment, there is no guarantee that it will be
in the future.

Noah Feldman, a contributing writer for the magazine, is a law professor at
Harvard University and an adjunct senior fellow at the Council on Foreign
Relations.