America as Pattern and Problem

Since the days of Tocqueville, foreign observers have seen America as both a pattern and a problem. They still do, and in ways that illuminate the way law deals with bioethical issues both here and abroad. America was long exceptional in having a written constitution, in allowing its courts the power of judicial review, and in letting courts exercise that power to develop and enforce principles of human rights. Today, that pattern looks markedly less exceptional. After the Second World War, Germany and Japan were persuaded to adopt constitutions that included human rights provisions and that endowed courts with the power to interpret them. Since that time, a number of other countries-Canada, for example--have also moved closer to the American constitutional pattern. Many countries, however, have not been content to borrow American constitutional principles and practices. Their courts have also asserted their authority to develop and enforce principles of human rights in two other ways. First, courts in many countries have assumed jurisdiction over questions involving those rights by virtue of their duty to interpret treaties their countries have signed. Second, and strikingly, courts in many countries have come to see themselves as joint participants in the work of building an international body of human rights law. As my colleague Christopher McCrudden writes in his fascinating study of this development, It is now commonplace for courts in one jurisdiction to refer extensively to the decision of other courts in interpreting human-rights guarantees