"A decent Respect to the Opinions of [Human]kind": The Value of a Comparative Perspective in Constitutional Adjudication Ruth Bader Ginsburg, Associate Justice-
Supreme Court of the United States
April 1, 2005
The Old Testament Book of Deuteronomy famously instructs: "Justice, justice shall you pursue, that you may thrive." My remarks center on one aspect of that pursuit, judicial review for constitutionality. I will present variations on a theme elaboratively developed by Justice Michael Kirby in his March 29 Grotius Lecture. There will be some overlap, but I hope you will not find it undue. I will address, specifically, the evolving
appreciation that U. S. judges are not alone in the endeavor to interpret fundamental human rights norms and apply them to concrete cases. What impact, if any, that reality should have on our decisionmaking has proved controversial, as this audience well knows.
Before taking up the diversity of opinions on this matter, I will state and endeavor to explain my view, which is simply this: If U. S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others now engaged in measuring ordinary laws and executive actions against charters securing basic rights.
Exposing laws and official acts to judicial review for constitutionality was once uncommon outside the United States. In the United Kingdom, not distant from France, Spain, Germany and other civil law countries in this regard, court review of legislation for compatibility with a fundamental charter was considered off limits, irreconcilable with the doctrine of parliamentary supremacy. But particularly in the years following World War II, many nations installed constitutional review by courts as one safeguard against oppressive government and stirred-up majorities. National, multinational and international human rights charters and courts today play a prominent part in our world. The U. S. judicial system will be the poorer, I believe, if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.
Very much the same opinion was several times expressed by the Chief Justice of the United States, William H. Rehnquist, most recently in a 1999 Foreword to a collection of essays on comparative constitutional law. The Chief wrote:
[F]or nearly a century and a half, courts in the United States exercising the power of judicial review [for constitutionality] had no precedents to turn to except their own, because our courts alone exercised this sort of authority. When many new constitutional courts were created after the Second World War, these courts naturally looked to decisions of the Supreme Court of the United States, among other sources, for developing their own law. But now that constitutional law is solidly grounded in so many countries, it [is] time the U. S. courts began looking to the decisions of other constitutional courts to aid in their own deliberative process.
(Of late, I must acknowledge, my Chief has expressed disagreement on the relevance of foreign law, particularly on questions implicating the allocation of regulatory and decisionmaking authority between state and federal governments in the United States. I will later refer to 21st-century dissenting opinions he joined criticizing comparative sideglances by the Court's majority.)
Returning to my own perspective, while U. S. jurisprudence has evolved over the course of two centuries of constitutional adjudication, we are not so wise that we have nothing to learn from other democratic legal systems newer to judicial review for constitutionality. The point was well made by Second Circuit Judge, former Dean of Yale Law School, Guido Calabresi: "Wise parents," Judge Calabresi said in a 1995 concurring opinion, "do not hesitate to learn from their children."
In the value I place on comparative dialogue - on sharing with and learning from others - I am inspired by counsel from the founders of the United States. The drafters and signers of the Declaration of Independence cared about the opinions of other peoples; they placed before the world the reasons why the States, joining together to become the United States of America, were impelled to separate from Great Britain. The Declarants stated their reasons out of "a decent Respect to the Opinions of Mankind." To that end, they presented a long list of grievances, submitting the "Facts" - the "long Train of [the British Crown's] Abuses and Usurpations" - to the scrutiny of "a candid World."
The Supreme Court, early on, expressed a complementary view: The judicial power of the United States, the Court said in 1816, was intended to include cases "in the correct adjudication of which foreign nations are deeply interested . . . [and in] which the principles of the law and comity of nations often form an essential inquiry."
"Far from [exhibiting hostility] to foreign countries' views and laws," Professor Vicki Jackson of the Georgetown law faculty told a congressional committee last year, "the founding generation showed concern for how adjudication in our courts would affect other countries' regard for the United States." Even more so today, the United States is subject to the scrutiny of "a candid World." What the United States does, for good or for ill, continues to be watched by the international community, in particular, by organizations concerned with the advancement of the "rule of law" and respect for human dignity.
The new United States looked outward not only to earn the respect of other nations. In writing the Constitution, the Framers looked to other systems and to thinkers from other lands for inspiration, and they understood that the new nation would be bound by "the Law of Nations," today called international law. Among powers granted the U. S. Congress, the Framers enumerated in Article I the power "[t]o define and punish . . . Offences against the Law of Nations."
John Jay, one of the authors of The Federalist Papers and the first Chief Justice of the United States, wrote in 1793 that the United States, "by taking a place among the nations of the earth, [had] become amenable to the laws of nations." Eleven years later, Chief Justice John Marshall cautioned that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." And in 1900, the Court famously reaffirmed in The Paquete Habana that
[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice . . . . [W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.
There are generations-old and still persistent discordant views, I acknowledge, on recourse to the "Opinions of Mankind." A mid-19th century U. S. Chief Justice expressed opposition to such recourse in an extreme statement. He wrote:
No one, we presume, supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce the [U. S. Supreme Court] to give the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.
Those words were penned in 1857. They appear in Chief Justice Roger Taney's opinion for a divided Court in Dred Scott v. Sandford, an opinion that invoked the majestic Due Process Clause to uphold one human's right to hold another in bondage. The Dred Scott decision declared that no "descendan[t] of Africans [imported into the United States], and sold as slaves" could ever become a citizen of the United States.
While the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments reversed that judgment, there remains among U. S. jurists considerable skepticism on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights. Some have expressed downright opposition. Justice Scalia wrote this year, in a dissenting opinion joined by the Chief Justice and Justice Thomas: The Court "should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."
Another trenchant critic, Seventh Circuit Judge Richard Posner, commented last year: "To cite foreign law as authority is to flirt with the discredited . . . idea of a universal natural law; or to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience." Judge Posner's view rests, in part, on the concern that U. S. judges do not comprehend the social, historical, political, and institutional background from which foreign opinions emerge. Nor do we even understand the language in which laws and judgments, outside the common law realm, are written.
Judge Posner is right, of course, to this extent: Foreign opinions are not authoritative; they set no binding precedent for the U. S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. As to our ignorance of foreign legal systems, just as lawyers can learn from each other in multinational transactions and bar associations, judges, too, can profit from exchanges and associations with jurists elsewhere. Yes, we should approach foreign legal materials with sensitivity to our differences and deficiencies, but those differences and deficiencies, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey.
Somewhat more accommodating, Ninth Circuit Judge Diarmuid O'Scannlain stated in remarks made last fall at the Institute of Advanced Legal Studies in London: "[Judges] both in the United States and in other countries [should] be cautious about engaging in comparative constitutional analysis" for "our respective countries and legal systems remain distinct in several important respects." "[L]imited references to foreign legal authorities may play a beneficial role in contemporary American jurisprudence," he said, but "courts in the United States should restrict the use of foreign legal authorities to certain well-defined categories of cases": when treaties or international conventions are relevant, first and foremost, and also when our Congress "has expressed a desire to bring the United States into alignment with the international community."
Judge O'Scannlain gave as examples two opinions I wrote for the Court. The first, El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, relied on a House of Lords' decision interpreting the Warsaw Convention's limitations on airline liability for injury to a passenger; the second, Eldred v. Ashcroft, upheld against constitutional challenge a statute conforming our copyright term to the European Union's "life plus seventy years." Judge O'Scannlain's presentation placed him in accord with Fourth Circuit Judge J. Harvie Wilkinson, III, who cautioned against looking abroad when resolving "contentious social issues."
More representative of the perspective shared by six of my current colleagues, Patricia M. Wald, former Chief Judge of the D.C. Circuit, last year said with characteristic wisdom: "It's hard for me to see that the use of foreign decisional law is an up-or-down proposition. I see it rather as a pool of potential and useful information and thought that must be mined with caution and restraint."
Several members of the U. S. Congress would terminate all debate over whether U. S. courts should refer to foreign or international legal materials. For the most part, they would respond to the question with a resounding "No." Two identical Resolutions, one recently introduced in the U. S. House of Representatives and the other in the Senate, declare that "judicial interpretations regarding the meaning of the Constitution of the United States should not be based . . . on judgments, laws, or pronouncements of foreign institutions" unless such materials "inform an understanding of the original meaning of the Constitution." The House Resolution has garnered support from 49 cosponsors. These two Resolutions recycle similar measures proposed in the 108th Congress, but never put to a vote. Although I doubt the Resolutions will pass in this Congress, it is disquieting that they have attracted sizable support.
To a large extent, I believe, the critics in Congress and in the media misperceive how and why U. S. courts refer to foreign and international court decisions. The Washington Post, for example, worried in a March 25 editorial "about the implications for liberty and the democratic rights of the American people if the courts outsource America's constitutional tradition." We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed."
Professor Vicki Jackson noted the "negative value" comparative sideglances may sometimes have. She referred in this regard to the "Steel Seizure Case." There, Justice Jackson, in his separate opinion, pointed to features of the Weimar Constitution in Germany that allowed Adolf Hitler to assume dictatorial powers. He contrasted Germany's situation with that of France and Great Britain, countries in which legislative authorization was required for the exercise of emergency powers. Justice Jackson drew from that comparison support for the conclusion that, without more specific congressional authorization, the U. S. President could not seize private property in aid of a war effort.
Our own Constitution, Justice Scalia has noted, does not contain any instruction resembling South Africa's prescription. That nation's Constitution provides that courts, when interpreting the Bill of Rights, must consider international law, and may consider foreign law. Other post-World War II Constitutions, India's and Spain's, for example, have similar prescriptions.
I would demur to Justice Scalia's observation. Judges in the United States are free to consult all manner of commentary - Restatements, Treatises, what law professors or even law students write copiously in law reviews, for example. If we can consult those writings, why not the analysis of a question similar to the one we confront contained in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights? Israel's Chief Justice, Aharon Barak, had it right, I think, when he listed among questions on which comparative law inquiry could prove enlightening or valuable in a positive or negative sense: hate speech, privacy, abortion, the death penalty, and now the fight against terrorism.
A case in point. On December 16, 2004, in a controversy precipitated by the fight against terrorism, the Lords of Appeal issued a waypaving decision, one that looks beyond the United Kingdom's borders. The case was brought by aliens held in custody at Belmarsh prison. A nine-member panel ruled, 8-to-1, that the British government's indefinite detention of foreigners suspected of terrorism, without charging or trying them, is incompatible with the European Convention on Human Rights, incorporated into domestic law by the U. K. Human Rights Act. Lord Bingham's lead opinion draws not only on domestic decisions and decisions of the European Court of Human Rights. It also refers to opinions of the Supreme Court of Canada and U. S. federal court opinions. Finding the differential treatment of nationals and non-nationals impermissible under the European Convention, Lord Bingham also referred to several U. N. instruments, commencing with the 1948 Universal Declaration of Human Rights and including the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.
Other opinions in that noteworthy decision also referred to Canadian and U. S. opinions. One example: Baroness Hale (the first woman ever to be named a Law Lord), after noting that "Belmarsh is not the British Guantanamo Bay," quoted a passage on the protection of minority rights from Thomas Jefferson's inaugural address. The New York Times called the Lords' ruling "a strong example of the increasing interdependence of domestic and international law, at least outside of the United States." Parliament, I should add, just last month (March 11), reacted to the Lords' decision by enacting as part of an antiterrorism law, a provision that allows the placement of terrorist suspects under a highly restrictive form of house arrest, in lieu of imprisonment, again without charging or trying them.
The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a close kinship to the view of the U. S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U. S. jurists honor the Framers' intent "to create a more perfect Union," I believe, if they read our Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.
Justice Oliver Wendell Holmes, Jr. made the point felicitously in a case decided in 1920, Missouri v. Holland, involving the treaty-making power. "[W]hen we are dealing with words . . . [in] the Constitution of the United States," Holmes wrote, "we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters . . . . The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago."
A key 1958 plurality opinion, Trop v. Dulles, sounds the same theme. At issue in that case, the proper reading of the Eighth Amendment's ban on "cruel and unusual punishments." "The basic concept underlying the . . . Amendment," the opinion observed, "is nothing less than the dignity of man." Therefore the constitutional text "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." In that regard, the plurality observed: "The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime."
A fairly recent example of frozen-in-time interpretation is Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., a 1999 decision involving no grand constitutional question, simply equity between parties with no ideological score to settle. The basic scenario: A Mexican company defaulted on payments due to a U. S. creditor and was sued in a Federal District Court, which had personal jurisdiction over the debtor. Sliding into insolvency, the Mexican company was busily distributing what remained of its assets to its Mexican creditors. It did so in clear violation of a contractual promise to treat the U. S. creditor on par with all other unsecured, unsubordinated creditors. Continuation of that activity would leave nothing in the till for the U. S. creditor.
Since 1975, British courts have been providing a remedy in similar circumstances. To assure that there will be assets against which a final judgment for the plaintiff creditor can be executed, courts in the United Kingdom issued Mareva injunctions, so named for the second case which approved the practice. A Mareva injunction temporarily restrains a foreign debtor from transferring assets pending adjudication of the domestic creditor's claim.
A U. S. District Court, ruling over two decades after the leading U. K. decisions, looked to the Mareva injunction, which other common-law nations had by then adopted, and found it altogether fitting for the U. S. creditor's case against the Mexican debtor. The Court of Appeals agreed. But a 5-4 majority of the U. S. Supreme Court concluded that Mareva injunctions were not "traditionally accorded by courts of equity" at the time the Constitution was adopted. A power that English courts of equity "did not actually exercise . . . until 1975," the Court concluded, was not one U. S. courts could assume.
Joined by Justices Stevens, Souter, and Breyer, I dissented from the Court's static conception of equitable remedial authority. Earlier decisions described that authority as supple, adaptable to changing conditions. I noted, among other things, that federal courts, in their sometimes heroic efforts to implement the public school desegregation mandated by Brown v. Board of Education, did not embrace a frozen-in-time view of their equitable authority. Issuing decrees "beyond the contemplation of the 18th-century Chancellor," they applied the enduring principles of equity to the changing needs of a society still in the process of achieving "a more perfect Union."
Turning from frozen-in-time interpretation, I will take up another shortfall or insularity in current U. S. jurisprudence, at least as I see it. The Bill of Rights, few would disagree, is the hallmark and pride of the United States. One might therefore assume that it guides and controls U. S. officialdom wherever in the world they carry the flag of the United States or their credentials. But that is not the currently prevailing view. For example, absent an express ban by treaty, a U. S. officer may abduct a foreigner and forcibly transport him to the United States to stand trial. The Court so held, 6-to-3, in 1992. Just a year earlier, South Africa's Supreme Court of Appeal had ruled the other way. It determined that under South Africa's common law, a trial court has no jurisdiction to hear a case against a defendant when the State had acted lawlessly in apprehending him by participating in an abduction across international borders.
Another example, one in which I was a participant, involving civil litigation: Interpreting U. S. Supreme Court precedent, the D.C. Circuit held in 1989, during my tenure on that court and over my dissent, that foreign plaintiffs acting abroad - plaintiffs were Indian family planning organizations - had no First Amendment rights, and therefore no standing to assert a violation of such rights by U. S. officials. In dissent, I resisted the notion that in an encounter between the United States and nonresident aliens, "the amendment we prize as 'first' has no force in court." I expressed the expectation that the position taken in the Restatement (Third) of Foreign Relations would one day accurately describe our law. "[W]herever the United States acts," the Restatement projects, "'it can only act in accordance with the limitations imposed by the Constitution.'"
That point was well stated by Columbia University Professor Louis Henkin, a principal drafter of the current Foreign Relations Restatement. He wrote:
[I]n a world of states, the United States is not in a position to secure the rights of all individuals everywhere, [but] it is always in a position to respect them. Our federal government must not invade the individual rights of any human being. The choice in the Bill of Rights of the word "person" rather than "citizen" was not fortuitous; nor was the absence of a geographical limitation. Both reflect a commitment to respect the individual rights of all human beings.
Returning to my main theme, I will describe more particularly the Supreme Court's most recent decisions involving foreign or international legal sources as an aid to the resolution of constitutional questions. In a headline 2002 decision, Atkins v. Virginia, a six-member majority (all save the Chief and Justices Scalia and Thomas) held unconstitutional the execution of a mentally retarded offender. The Court noted that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is universally disapproved." The following 2002-2003 Term was appraised as pathmarking. New York Times reporter Linda Greenhouse observed on July 1, 2003, in her annual roundup of the Court's decisions: The Court has "displayed a [steadily growing] attentiveness to legal developments in the rest of the world and to the [C]ourt's role in keeping the United States in step with them."
Among examples I would include the Michigan University affirmative action cases decided on June 23, 2003. In separate opinions, joined in one case by Justice Breyer, in the other in full by Justice Souter and in part by Justice Breyer, I looked to two United Nations Conventions: the 1965 International Convention on the Elimination of all Forms of Racial Discrimination, which the United States has ratified; and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which, sadly, the United States has not yet ratified. Both Conventions distinguish between impermissible policies of oppression or exclusion, and permissible policies of inclusion, "temporary special measures aimed at accelerating de facto equality." The Court's decision in the Michigan Law School case, I observed, "accords with the international understanding of the [purpose and propriety] of affirmative action."
A better indicator from the same Term, because it attracted a majority, is Justice Kennedy's opinion for the Court in Lawrence v. Texas, announced June 26, 2003. Overruling the Court's 1986 decision in Bowers v. Hardwick, Lawrence declared unconstitutional a Texas statute prohibiting two adult persons of the same sex from engaging, voluntarily, in intimate sexual conduct. On the question of dynamic versus static, frozen-in-time constitutional interpretation, the Court's opinion instructs:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
On respect for "the Opinions of [Human]kind," the Lawrence Court emphasized: "The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries." In support, the Court cited the leading 1981 European Court of Human Rights decision, Dudgeon v. United Kingdom, and subsequent European Human Rights Court decisions affirming the protected right of homosexual adults to engage in intimate, consensual conduct.
In the 2003-2004 Term, foreign and international legal sources again figured in several decisions. These included, most notably, two June 2004 decisions. One, Hamdi v. Rumsfeld, concerned a U. S. citizen, held incommunicado in a Navy brig in South Carolina pursuant to an executive decree declaring him an "enemy combatant." Ruling some six months before the Lords' decision in the Belmarsh case, the Court held, 8-to-1, that the petitioner was entitled, at least, to a fair opportunity to contest the factual basis for his detention. Even in "our most challenging and uncertain moments" when "our Nation's commitment to due process is most severely tested," Justice O'Connor wrote for a four-Justice plurality, "we must preserve our commitment at home to the principles for which we fight abroad." "[A] state of war," her opinion makes clear, "is not a blank check for the President" to trample on the rights of citizens. Indeed, "history and common sense teach us that an unchecked system of detention carries the potential to become a means of oppression and abuse."
The other "enemy combatant" case, Rasul v. Bush, held that U. S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured in hostilities abroad, then transported to the U. S. naval base in Guantanamo Bay, Cuba. The Supreme Court has so far written only chapter one on the Guantanamo Bay incarcerations. The District Court for the District of Columbia has split on chapter two. One judge held that foreigners detained at Guantanamo Bay could be granted no judicial relief. Another ruled that the detainees were entitled to a fair hearing on the question whether their incarceration comports with due process requirements. Both cases are currently on appeal to the Court of Appeals for the D. C. Circuit.
Last month's decision in Roper v. Simmons presents perhaps the fullest expressions to date on the propriety and utility of looking to "the opinions of [human]kind." Holding unconstitutional the execution of persons under the age of 18 when they committed capital crimes, the Court declared it fitting to acknowledge "the overwhelming weight of international opinion against the juvenile death penalty." Justice Kennedy wrote for the Court that the opinion of the world community provides "respected and significant confirmation of our own conclusions." "It does not lessen our fidelity to the Constitution," he explained, to recognize "the express affirmation of certain fundamental rights by other nations and peoples." That affirmation, he maintained, "underscores the centrality of those same rights within our own heritage of freedom."
Justice O'Connor, although she dissented from the Court's categorical ruling, agreed with the Court on the relevance of "foreign and international law to [our] assessment of evolving standards of decency." The other dissenters, for whom Justice Scalia spoke, vigorously contended that foreign and international law have no place in determining what punishments are "cruel and unusual" within the meaning of our Eighth Amendment.
Recognizing that forecasts are risky, I nonetheless believe we will continue to accord "a decent Respect to the Opinions of [Human]kind" as a matter of comity and in a spirit of humility. Comity, because projects vital to our well being - combating international terrorism is a prime example - require trust and cooperation of nations the world over. And humility because, in Justice O'Connor's words: "Other legal systems continue to innovate, to experiment, and to find new solutions to the new legal problems that arise each day, from which we can learn and benefit."
In this regard, I was impressed by an observation made in September 2003 by Israel's Chief Justice, Aharon Barak. September 11, he noted, confronts the United States with the dilemma of conducting a war on terrorism without sacrificing the nation's most cherished values, including our respect for human dignity. "We in Israel," Barak said, "have our September 11, and September 12 and so on." He spoke of his own Court's efforts to balance the government's no doubt compelling need to secure the safety of the State and of its citizens on the one hand, and the nation's high regard for "human dignity and freedom on the other hand." He referred, particularly, to a question presented to his Court: "Is it lawful to use violence (less euphemistically, torture) in interrogat[ing] [a] terrorist in a 'ticking bomb' situation." His Court's answer: No, "[n]ever use violence." He elaborated:
[It] is the fate of a democracy [that] not all means are acceptable to it, . . . not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of [a democracy's] understanding of security. At the end of the day, [those values buoy up] its spirit and strength [and its capacity to] overcome [the] difficulties.
We live in an age in which the fundamental principles to which we subscribe - liberty, equality, and justice for all - are encountering extraordinary challenges. But it is also an age in which we can join hands with others who hold to those principles and face similar challenges. May we draw inspiration from Abigail Adams, who wrote to her son and future President of the era in which he was coming of age:
These are the times in which a genius would wish to live. It is not in the still calm of life, or the repose of a pacific station, that great characters are formed. The habits of a vigorous mind are formed in contending with difficulties.
 Judge Posner acknowledged that decisions elsewhere might have informational value; they might be useful, he thought, if they contain persuasive reasoning.
 In the first case, Nippon Yusen Kaisha v. Karageorgis, decided a month earlier, Lord Denning acknowledged that "[i]t ha[d] never been the practice of the English Courts to seize assets of a defendant in advance of judgment or to restrain the disposal of them." Noting "that the practice on the Continent of Europe is different," he concluded that "the time has come when we should revise our practice."
"In writing the Constitution, the Framers looked to other systems and to thinkers from other lands for inspiration, and they understood that the new nation would be bound by “the Law of Nations,” today called international law."