Feldman calls for outward-looking view of Constitution

BY MATT HUTCHINS

On September 16, Professor Noah Feldman was honored in the Casperson Room by Dean Elena Kagan with the Bemis Chair in International Law. Feldman spoke on the occasion in a lecture entitled “The Constitution and the International Order,” during which he advocated a “constitutional foreign policy” which would allow the United States to be a leader in the formation of international law. Feldman says that the balance of the rule of law and foreign policy is a role for the court.

Feldman outlined two distinct visions of the rule of law which are in tension with one other: an inward looking concept of the constitution and an outward looking concept of the constitution. The inward looking concept is characterized by the view that laws are legitimate because they are procedurally constitutional and the product of a democratic process. This is the view taken by Justice Antonin Scalia. One viewpoint that emerges from inward looking constitutional thought is that international bodies (and hence, the law they produce) lack the legitimacy of direct, democratic procedures. The outward looking concept is characterized by the view that the constitution is the paradigm of the rule of law and should embody justice in governance. This view embraces international organizations as an institutional link between universal values of freedom and justice and the implementation of the rule of law.

Professor Feldman analyzed how the tension between these two concepts of constitutional law was borne out in the recent Supreme Court cases Medellin v. Texas and Boumedeine v. Bush. He then explored which of these two frameworks constitutes the best approach to dealing with contemporary issues in the law. Feldman concluded that the inward looking framework leads to a deadlock, whereas the outward looking framework allows an experimental constitution.

Feldman emphasized that, “Although unilateralism has a place, at this time we need an interpretation of the constitution which looks outward.” Although this may require the U.S. to confer rights upon citizens of other nations, he believes that conferral of rights is a triumph for any system which truly stands for the rule of law. This is partly because that system is typically the product of those who have power, and administration of a stable order is impossible without consensus. He concluded by stating that, “Our generation will get the constitution we deserve, but there is no guarantee that constitution will be the right one.”

Prior to Professor Feldman’s lecture, Dean Kagan explained that the Bemis Chair, most recently held by Professor Detlev Vagts, was endowed by George Bemis, a member of the Harvard College class of 1839. Bemis did work in criminal law, developing the insanity and uncontrollable impulse defenses before retiring to Europe. In his retirement he came to appreciate the need for an endowed chair which would support the advancement of knowledge and goodwill between governments. The Bemis Chair is given to a professor who is a “practical cooperator,” has had a connection with public life, and is capable of seeing the United States as one nation among many.

Professor Feldman, who joined the faculty of HLS in 2007, is a distinguished scholar in the areas of constitutional design, law and religion, and legal history. His most recent book, which examines the history of Sharia law, is titled The Fall and Rise of the Islamic State. His three previous books are Divided by God: America’s Church and State Dilemma, What We Owe Iraq: War and the Ethics of Nation Building, and After Jihad, America and the Struggle for Islamic Democracy. His experience before joining the HLS faculty included a role as senior constitutional advisor to the Coalition Provisional Authority in Iraq and service as law clerk to Justice David Souter at the U.S. Supreme Court. He graduated summa cum laude from Harvard University in 1992 with an A.B. in Near Eastern Languages and Civilizations, was a Rhodes Scholar, received a D.Phil from Oxford University in Islamic Thought in 1994, and received his J.D. from Yale Law School in 1997.

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