The Supreme Court and International Law
Noah Feldman, a Harvard law professor and an adjunct senior fellow at the Council on Foreign Relations, has an interesting piece in last Sunday’s New York Times Magazine that analyzes the relationship between the U.S. Supreme Court and international law. Feldman argues that there are two lenses through which one can view this relationship. The first views the Constitution as facing inward, “toward the Americans who made it, toward their rights and their security.” This view is accepted by Supreme Court Chief Justice Roberts and Justices Scalia, Thomas, and Alito. The other views the Constitution as facing outward, in a paradigm in which “rights similar to those [the Constitution] confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order.” This view is accepted by Justices Stevens, Souter, Ginsburg, and Breyer.
Feldman states that each of these views of the Constitution in international law has recently enjoyed a victory. The liberals, with the aid of Justice Kennedy and an outward-looking Constitution, prevailed in the much-publicized Boumediene v. Bush, a decision that granted detainees at
“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
Feldman's article raises an interesting question: Do we have a Constitution that is “outward-facing” and confers rights on all world citizens, or is our Constitution “inward-facing” and centered only on the rights of Americans?