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, 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.
(Of course, respect for foreign opinion may still be practically useful, both to win over foreigners and perhaps even to help us consider whether we might be mistaken in our own views. The point here is simply that the Declaration of Independence can’t be soundly used as an argument that the Framers believed that such respect requires us to adhere — or even to seriously consider — international views about the legality of our actions.)
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