This interview was first published on Constitutional Discourse.
Renée Lettow Lerner is Donald Phillip Rothschild Research Professor of Law at George Washington University Law School. Professor Lerner works in the fields of US and English legal history, civil and criminal procedure, and comparative law. She advises judges, lawyers, and government officials from the United States and countries in Europe, Latin America, and Asia about the differences between adversarial and non-adversarial legal systems.
At the international law conference organized by the Mathias Corvinus Collegium on 27 September 2023 speakers delved into various topics such as the evolution of the discourse around fundamental rights and the corresponding responsibilities, the concept of state sovereignty, and the critical examination of the essential role of subsidiarity. Professor Lerner was one of the speakers.
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‘Where, after all, do universal rights begin? In small places, close to home—so close and so small that they cannot be seen on any world maps. (…) Unless these rights have meaning there, they have little meaning anywhere.’ These were the words of Eleanor Roosevelt, and this is the motto of this event. This interview is being recorded in the capital of Hungary, which is indeed a relatively small place that many people may not readily recognize on the map. How are you finding your experience in Hungary so far?
It’s beautiful. I love Hungary. I was here in 2019 for the first time with my children and really enjoyed it. It is a wonderful place. I’m so glad to come back.
You were one of the speakers at the Rescuing our Inalienable Rights Conference, an international conference marking the 75th anniversary of the Universal Declaration of Human Rights. What are your thoughts on this conference?
It’s a remarkable event, and I’m genuinely pleased to be here. Mr Lénárd Sándor has successfully convened so many participants from all corners of the world. It has been fascinating to delve into Hungary’s perspectives on human rights and its approach to this critical matter. For instance, I was previously aware of the existence of Hungarian minorities in other countries, but I had not fully grasped the significance of this and why Hungarians are particularly dedicated to safeguarding the rights of these minorities.
Did this experience influence your perspective on this topic, and if so, how?
Indeed, it has significantly shaped my viewpoint and provided me with a more nuanced understanding of Hungarian perspectives. The situation here in Central Europe is marked by fluidity in borders, with frequent changes. This is not a concept that Americans commonly encounter, given the long-standing stability of our own borders. It is, however, quite enlightening to gain insights into a different geopolitical situation.
Not only do we have a different geopolitical situation but a sui generis political entity, the European Union as well. In one of your interviews, you emphasized the importance of Europeans being vigilant about the potential for anti-democratic judicial tyranny. How can we identify such judicial tyranny?
It aligns with what I discussed today regarding courts initially considering rights that appear plausible and reasonable on the surface, but then interpreting them in manners unintended by the drafters and often misunderstood by people in various countries. During my presentation, I provided an example from the United States where a court determined that individuals sleeping on the streets have a right to do so, asserting that it is protected by the US Constitution. The court invoked the Eighth Amendment, which prohibits cruel and unusual punishment, and argued that punishing people for sleeping on the streets or in parks would be deemed cruel and unusual. As a result, in the Western part of the United States where this court holds jurisdiction, we now witness significant challenges with people residing in tents on the streets and in public parks.
This has created a sense of fear among the general public who are hesitant to traverse those areas,
given the proliferation of tents, drug usage, and unsanitary conditions. It’s a dire situation.
That’s very interesting because we had a similar debate in Budapest a few years ago. Looking ahead, how do you anticipate the interpretation will evolve? What kind of judicial interpretation do you think the judges will employ in the future? How would their decisions differ?
It depends on the school of interpretation that the judge follows; on whether judges feel constrained by the common good, by awareness of the common good, and not just a sole focus on individual rights. And that helps. In general, it’s a more limited idea of their power to interpret the document in that way. In some cases, to look at what the drafters of the document would have meant. And it’s impossible that the drafters of the 8th Amendment of the US Constitution would have meant that there’s a constitutional right to sleep on the streets or in public parks, for example. However, if a different form of interpretation is adopted, what we refer to in the US as living constitutionalism, one might be more inclined to identify such rights, placing a stronger focus on individual rights rather than the common good.
You teach at George Washington University. You mentioned that there are different schools of interpretation. But what about freedom of speech in US universities?
Well, it’s a situation where, in theory, there’s freedom of speech. Academics and other individuals can theoretically express a wide range of views. However, in practice, universities are predominantly influenced by the left. There’s a significant amount of social pressure to avoid expressing views that the left disagrees with. We consistently face this kind of informal social pressure, leading to a lot of self-censorship. Many academics are cautious about what they say because they fear the opinions of their colleagues, for instance. This is what’s happening in the US—universities lean heavily towards the left. In many disciplines, well over 90 per cent of professors, even up to 95 per cent, identify with the left, and not just the left but the far left. This situation makes it challenging for anyone else, certainly on the right or even in the centre to contradict that.
And do you think that it could have an influence on the quality of education in the US?
It certainly does, because the students are not hearing all of the different points of view. And in particular, the judiciary in the US is not all on the left. A large portion of the judiciary, not the majority, but a large portion of the judiciary is conservative and adheres to a different style of interpretation than the left does and the students don’t hear about that—or only hear about it as criticisms of it—and not arguments in support of it. So that’s a real problem.
Turning back to Europe, under EU law, when the Commission believes that a member state has failed to fulfil its obligations under EU law, it may initiate infringement proceedings. But according to statistics, in most of the cases, when this procedure is launched by the Commission, the European Court of Justice tends to make decisions in favour of the Commission. Could it be a type of judicial tyranny in your conceptual framework?
Indeed, judges and courts are often tempted to interpret treaties in a manner that aligns with their own policy preferences. And so it’s very tempting for them to try to use their power to have aggressive interpretations that infringe on national sovereignty and what the people of that country think. So, it’s a significant and challenging temptation—one that, in certain instances, becomes a reality.
I would like to present to you a judgment of the Court of Justice of the European Union, and I would be interested in how you see it. It was about a lesbian couple in Spain who—according to Spanish law—were both the mothers of a child, but one of them was, of course, genetically not related to him. The Sofia municipality refused to issue the requested birth certificate because of the lack of information concerning the identity of the child’s biological mother and the fact that a reference to two female parents on a birth certificate was contrary to Bulgarian public policy, which does not permit marriage between two persons of the same sex. The ECJ held that Bulgaria has to recognize the parent–child relationship between that child and each of those two persons.
Interesting. And when was that decision?
Two years ago.
This is a type of problem that could easily arise when different countries have different laws about this. So, in Bulgaria, I assume they probably don’t allow two women to get married to each other.
No, they don’t.
And they probably wouldn’t allow two women to adopt a child. We’re accustomed to facing such kinds of problems in the United States as well because we have many different states, each with different laws regarding marriage and adoption. However, our Constitution outlines something known as the ‘full faith and credit clause.’ That clause requires the states to honour each other’s actions to a certain extent, with exceptions for public policy.
In the EU, obviously, there are different countries with varying laws on these matters.
The question of whether these countries should recognize marriages or adoptions of this kind should be addressed in the Treaty.
All countries should negotiate and come to an agreement on this issue. Thus, this matter should not be left up to the courts to decide whether Bulgaria must recognize such unions, especially on fundamental social issues that hold great importance for people.
These issues should be addressed within the Treaty. The Treaty may stipulate that, in such cases, Bulgaria has the right to declare that they do not consider these individuals as married or the adoption as valid. Nonetheless, this should be a matter outlined in the Treaty itself, not to be decided by the court.
Of course, but as you may know, the EU’s last ratified Treaty—the Treaty of Lisbon—entered into force on 1 December 2009.
This is indeed the problem—important issues like this one arise, and sometimes those treaties need to be renegotiated. I see this as one of those issues. I understand what you’re saying about the last modification of the Treaty in 2009. Since then, there have been numerous changes that significantly impact these fundamental matters. Consequently, it has fallen to the court to address these concerns.
A similar situation arises in the US. Amending our constitution is exceedingly challenging. And so the courts think that it’s their right to decide these kinds of questions. However, you do need to occasionally reopen those sorts of questions. It’s important to renegotiate treaties and, in the case of the US, to amend the Constitution when needed. I think those are jobs to be done that way rather than through the courts.
It is also written in this judgment that the obligation of accepting the Spanish regulation ‘does not undermine the national identity or pose a threat to the public policy of that member state that has to accept it’.
That’s not true. The Bulgarians have decided certain things about families and children and so forth. And of course, it undermines their national sovereignty and their people’s right to decide these things.
And that’s why courts should not be in the position of forcing this on different countries.
And you can certainly see how certain activists would try to engineer cases. Try to have somebody be married in a certain place or adopt children in a certain place and then move to a country that doesn’t accept that and then try to force them to accept that. That would undermine the laws that they have.
Truly, if it goes against public policy, the deep public policy of the state, they’re not supposed to have to agree to whatever some other state did.
In your opinion, what could we learn from the US’ legal history?
There are several things to consider, especially concerning federalism. The US operates under a system with dual sovereigns: the federal government, which is sovereign in certain respects, and the states, which are, at least in theory, supposed to be sovereign in other respects. The states are intended to have authority over family law and certain other areas of law, including criminal law. The federal government is not supposed to interfere in those domains. When this is the case, the system tends to work better, allowing different states to implement varying policies without being forced to adopt a uniform view. This approach generally works well.
I would hope that the European Court of Justice keeps this in mind—that these issues are highly fundamental and contentious. People hold deep disagreements about them. It’s important for the court to recognize that it is the prerogative of the people in those countries to determine these questions, and not to impose a uniform view upon them.
This is how the system of federalism is supposed to function and how it does function at times. However, one problem is that the federal government now possesses a significant amount of money due to taxation—a considerable tax revenue. Consequently, the federal government allocates a substantial amount of grants to the states, attaching conditions to these grants. It essentially states, ‘Alright, State, you can accept this funding, but you must comply with XYZ.’
That sounds similar to the concept in the EU.
An example of this is when the federal government provides grants to the states for constructing highways and roads. However, it stipulates, ‘States, if you accept this funding, you must adhere to a specific speed limit,’ for instance. To obtain the funding, the states have to agree to implement that speed limit. There are numerous instances of this practice. And
the federal government more and more often attaches conditions to its grants to the states to try to force the states to do certain things.
Consequently, states have been relinquishing a significant portion of their power due to these conditions. It’s a real problem. It’s quite interesting that similar issues arise in the EU. This is not surprising, as it’s a comparable system of federalism in practice. Hence, similar problems are bound to arise in both systems. The states and their governments in Europe will need to be careful about accepting money from the EU with these conditions attached. And it’s going to be very difficult to refuse the money.
