Foreign Law and the Exclusionary Rule:
A lot of VC readers are familiar with the debate over the use of foreign law to interpret the Bill of Rights. It's interesting that most discussions of this issue (not all, but most) overlook a prominent historical example: the use of the exclusionary rule for state violations of the Fourth Amendment, in which foreign law played a role in initially leading the Supreme Court to reject the use of the exclusionary rule under the Due Process clause.
The key case is Wolf v. Colorado, 338 U.S. 25 (1949), which held that the Fourth Amendment was applicable to the states through the Due Process clause but that its exclusionary rule was not. Doctrinally speaking, the question was whether the exclusionary remedy was "implicit in the concept of ordered liberty" such that it was required under the Due Process clause to be applicable to the states. Justice Frankfurter ruled that it was not, based in part on international practice:
Of course, the number of people who want the Supreme Court to rely on foreign law in the interpretation of the Due Process clause and also want a return to Wolf v. Colorado could fit in a phone booth, with room left over for an offensive tackle to enter the phone booth and make a call. But it strikes me as an interesting example.
The key case is Wolf v. Colorado, 338 U.S. 25 (1949), which held that the Fourth Amendment was applicable to the states through the Due Process clause but that its exclusionary rule was not. Doctrinally speaking, the question was whether the exclusionary remedy was "implicit in the concept of ordered liberty" such that it was required under the Due Process clause to be applicable to the states. Justice Frankfurter ruled that it was not, based in part on international practice:
[T]he immediate question is whether the basic right to protection against arbitrary intrusion by the police demands the exclusion of logically relevant evidence obtained by an unreasonable search and seizure because, in a federal prosecution for a federal crime, it would be excluded. As a matter of inherent reason, one would suppose this to be an issue to which men with complete devotion to the protection of the right of privacy might give different answers. When we find that in fact most of the English-speaking world does not regard as vital to such protection the exclusion of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right.(emphasis mine) Justice Frankfurther then added an Appendix to the Wolf decision listing the "English-speaking" jurisdictions and citations to their courts' rejection of the exclusionary rule. Here is the Appendix:
JURISDICTIONS OF THE UNITED KINGDOM AND THE BRITISH COMMONWEALTH OF NATIONS WHICH HAVE HELD ADMISSIBLE EVIDENCE OBTAINED BY ILLEGAL SEARCH AND SEIZURE.Twelve years later, the Supreme Court overruled Wolf in Mapp v. Ohio, 367 U.S. 643 (1961), and held that the exclusionary rule was applicable to the states. Strikingly, however, Mapp v. Ohio completely ignored international opinion and international practice. It looked only inwardly, closing its eyes to what Justice Ginsburg has called "the experience and good thinking foreign sources may convey." (Note also that while Frankfurter focused on "English-speaking" nations, he would have reached the same result by looking at all countries; as far as I know, the United States is still the only country in the world with a mandatory suppression remedy for search and seizure violations.)
AUSTRALIA Miller v. Noblet, (1927) S.A.S.R. 385.
CANADA ALTA. Rex v. Nelson, (1922) 2 W.W.R. 381, 69 D.L.R. 180.
MAN. ex v. Durousel, 41 Man. 15, (1933) 2 D.L.R. 446.
ONT. Regina v. Doyle, 12 Ont. 347.
SASK. Rex v. Kostachuk, 24 Sask. 485, 54 Can.C.C. 189.
ENGLAND See Elias v. Pasmore, (1934) 2 K.B. 164.
INDIA ALL. Ali Ahmad Khan v. Emperor, 81 I.C. 615(1).
CAL. Baldeo Bin v. Emperor, 142 I.C. 639.
RANG. Chwa Hum Htive v. Emperor, 143 I.C. 824.
SCOTLAND See Hodgson v. McPherson, (1913) S.C.(J.) 68, 73.
Of course, the number of people who want the Supreme Court to rely on foreign law in the interpretation of the Due Process clause and also want a return to Wolf v. Colorado could fit in a phone booth, with room left over for an offensive tackle to enter the phone booth and make a call. But it strikes me as an interesting example.
Where's "Cal."?
Under what interpretive methodology do the views of foreigners' construction of phrases similar to that found in the bill of rights hold weight?
Of course, if the american people understand the language to incorporate foreign views, that would be one thing, and there is good evidence that the american people, at ratification did look to foreign law-- specifically, english common law. But i struggle to accept the suggestion that the american people understand "due process" or whatnot to have the meaning that Ugandans whom they have never even met understand the phrase to comprise.
It seems weak to say because it's law in Upper Volta (Get out your old map) it should be law here. But isn't it reasonable to say that Judges in Upper Volta fashioned a compelling argument that fits in well with our own jurisprudence?
Emerson said, "A foolish consistency is the hobgoblin of little minds." And we know our Supreme Court justices have big minds.
On another note, regarding fee speech, just because it's accepted within Europe that suppression of speech is honky dory, doesn't mean a shred of that reasoning should be used to interpret our first amendment, even if the rest of the world agrees with Europe on this point.
Fascism and Communism were the rule almost everywhere on the globe in 1939. Should we have given FDR Il Duce or Der Fuhrer powers? (Some say we came darn close...) Would we now be better off? Is it okay, in hindsight, that we maybe stood apart from the entire world on certain issues? No? Yes? Why?
There is actually a respectable amount of literature arguing that the privileges or immunities clause of the 14th amendment did in fact incorporate the Bill of Rights, and not "by implication" but by plain meaning. In fact, this literature (by Akhil Amar and others) seems to be better reasoned and researched than the earlier contrary views taken by Raol Berger, Charles Fairman et al. Of course this is a completely separate issue from that of looking to foreign law for persuasive argument or binding precedent, as the 14th Amendment is most assuredly a domestic enactment.
BTW, it's a bit of a cop-out to say something isn't "controlling": if something is influential at all, there must be some set of facts where that influential factor is controlling.
I've wondered: how can search and seizure provisions stand as useful without an exclusionary remedy? Certainly at the Federal level it could be classified as a cause of impeachment: "And he has allowed the rampant disregard among his officers for the 4th amendment" but as a practical matter the justice department is too decentralized for such a remedy to be reasonable...
Yes, there's no moral difference as regards legitimacy between (say) present-day England, Canada or Germany on the one hand and Russia or [scil. North] Korea on the other.
Congratulations, you've just re-invented the United Nations.
As a non-American I do find it strange that US jurists who are firmest in rejecting any use of foreign law (not even looking at the stuff for useful suggestions when US law is unclear), are often most insistent on the relevance of pre-1776 English law and practice, in the name of originalism.
I've wondered that too, but the fact is, plenty of other liberal democracies get by just fine without an exclusionary rule. Of course, if we pretend like it's anathema to even talk about what other countries do, then we'll never be able to decide if we find their logic persuasive.
I like sbw's suggestion that we look at the reasoning of foreign cases. I think that they should get something like Skidmore deference. Foreign decisions, “while not controlling upon [U.S. law] by reason of their authority, do constitute a body of experience and informed judgment to which [interpreters of the American Constitution] may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift &Co., 323 U.S. 134, 140 (1944).
See here for more on my Skidmore-modeled views of constitutional interpretation.
What an absurd comment? It is beyond any reasonable dispute that many people, including Congressman who ratified the amendment, understood the 14th Amendment -- in particular the P&I clause thereof -- to incorporate the Bill of Rights against the states. There is also evidence that many people, including Congressman who ratified the amendment, disagreed. Thus, it is not illogical at all to believe this, and your whole comment is based on a sadly ignorant understanding of constitutional history.
Wasn't the pro-incorporation only the view of a small minority? Consider,Adamson v. California, 1947, Frankfurter, J., concurring.
1. Can the government attach an electronic eavesdropping device to that phone booth, and
2. Would the eavesdropped conversations be admissible?
And I've never understood any reason for a controversy about interpreting the Constitution based on precedents in common-law jurisdictions outside the US; it seems to me that the core of the problem in Kennedy's opinion in Roper v. Simmons is his reliance on "international opinion" and an unratified UN convention, not on common law.
For example, Kennedy notes that the UK no longer has the juvenile death penalty. If this decision were rooted in English common law, it would be highly relevant to this issue. But, as Kennedy himself points out, it isn't -- it's based on subsequent statutes:
Sorry, but the need for later statutory enactments argues AGAINST Justice Kennedy's claim -- because it makes it clear that UK common law (and, by extension, US common law) did NOT prohibit the execution of minors. That's the problem here: Kennedy's failure to rely on foreign common-law precedents for instruction into the intent of the Constitution.
Scotland isn't actually a common-law jurisdiction, though. I believe it's more properly a mixed jurisdiction, incorporating elements of common law &civil law. For example, they don't have contracts, they have obligations, and they don't have tort, they have delict. See Prof. Tetley's article on this. http://www.mcgill.ca/files/maritimelaw/mixedjur.pdf
No you are mistaken; pre-1776 English law and practice was adopted explicitly by the state legislatures. Therefore, it is not an exception to originalism.
Lets not kid ourselves about the real issue here.
A handful of people (group A) want to elevate the stature of foreign court rulings that expounding more expansive positive rights and more moral indignation over the death penalty. But such citations are opportunistic. Most supporters would agree that foreign law is suggestive, not controlling. Thus citations to it are a bit of scam. Its dressing up an idea as being a case of conservative stare decisis when at best it is an appeal to authority or an appeal to numbers.
"foreign law" opponents don't really oppose borrowing logic. They oppose the idea that reusing a logical argument used else where consitutes a citation as that term has been commonly used.
A sound argument is not an opinion, it is a fact and ought not to be cited except to allow the author to abridge reproducing the argument. i.e., much as you would cite a mathematical theorem.
Many foreign law citations are not done merely to abridge an argument but to cloak naked opinion in authority. i.e., to treat it as a premise.
All this uproar is because other people (group B) are calling group A on the bait and switch that's being performed. The trouble is that group B is using the same term that group A has choosen to perform their scam, making group b look ridiculous. Whereas group b's substantive position is quite reasonable: law by majority decision is something that the political branches should do, judges should shape the law by reasoning.
So if one wants to understand, for example, the Ex Post Facto clauses of our Constitution, read Blackstone's. See, e.g., Calder v. Bull, 3 U.S. 386 (1798).
Or if you want to understand the "Piracy" clause of Art. I, Sec. 8, pull out Blackstone's and Grotius. See, e.g., U.S. v. Smith, 18 U.S. 153 (1820).
It doesn't get more "foreign" than Blackstone and Grotius.
That's not to say that current foreign (or international) law should inform the SCOTUS's view of the Constitution -- except insofar as the "law of Nations" is concerned in Art. I, Sec. 8, cl. 10.
But foreign law seems a crucial building block to an original understanding the Constitution.
I am frankly not sure. My point, however, was neither that incorporation is correct or that it is consistent with the original intent of the "framers" of the 14th Amendment. My point was that it is not at all absurd, as the commenter clearly implied, to believe that the 14th Amendment incorporated the Bill of Rights against the states -- indeed, several people who voted for the Amendment at the time believed that it did.
For what it's worth, I believe that the Privileges and Immunities Clause clearly does incorporate the Bill of Rights against the States. That was my understanding of it when I first read the 14th Amendment in full in law school and was trying to figure out why the Bill of Rights were applied against the States. At the time, I did not know anything about the incorporation debate, or even that there was one. I think that every clause of the first eight amendments should be applied against the states; although the US Supreme Court disagrees with me.
The short answer to your question is that I don't know; certainly scholars such as Vicki Jackson have tried, but I'm not familiar enough with the details of their work to judge whether they've succeeded.
But it seems to me that asking for a principled (and comprehensive) basis for deciding when such precedents are and are not to be used is equivalent to asking for a principled and comprehensive basis for deciding how precedent is to be applied more generally--surely a challenging if not impossible task.
It is perhaps unsatisfying (or at least incomplete) to respond that foreign precedents should only be used when they're relevant--that is, either when a foreign court applies persuasive reasoning to an analogous legal problem, or when U.S. law somehow incorporates international law or custom by reference. But my own view is roughly this--at the very least, I see no basis for a per se rule against the citation of foreign precedents, but no similar rule against the citation of dissents, or against the citation of lower or state courts by the Supreme Court on points of federal law.
As to my invocation of what is and isn't controlling: by that I mean that rarely, if ever, is it appropriate to say "these foreign courts have decided X; therefore we should decide X too." There has to be some other reason why we should care. A corollary, though, is that when a foreign decision is cited as support for a proposition, it will seldom be the only support for the proposition.
As to the example here, there may well be some good reason why we should follow the rule of Mapp but also the rule of Roper, even though the latter but not the former accords with a perceived consensus among foreign courts. My point is that it's not real helpful to implicitly say, "Ha! See what foolish results following foreign precedent brings!" when no one, not even the most ardent advocates of the citation of foreign law, has suggested that we should always do so. (I'm not saying, incidentally, that Prof. Kerr was implicitly levying this criticism. But it's a danger with this kind of anecdote.)
I did not know that liberals cite to the pope very often.
That being said, I guess many people cherry pick - and it is hardly a liberal/conservative thing to not agree 100% with someone. Many conservatives are against Bush's federal spending, but support him on the social issues. Are they hypocrites or cherry pickers? Probably not. Instead, they just agree with some stuff and disagree with other stuff.
There is a fairly easy way to distinguish between using foreign law in interpreting the 8th versus the 4th Amendment: The text of the 8th, which prohibits cruel and unusual punishment, invites comparisons with other jurisdictions, and the 4th does not.
Implicit in the word "punishment" is a jurisdiction that punishes those who disobey the laws. The word "unusual" presupposes some sort of survey of those jurisdictions to figure out whether the punishment under examination is common or not.
One could argue that whether a search &seizure is "reasonable" is subject to the same sorts of comparisons; however, unlike "unusual" "punishment" whether a search is reasonable need not be compared to what other jurisdictions do. The law is riddled with descriptions of what is "reasonable" that are not connected to what any particular country does. Whether a search is "unreasonable" is more akin to whether punishment is "cruel" as opposed to "unusual." If it suddenly turned out (by universally accepted proof) that current lethal injection methods actually cause the person to be in a weeks-long state of utter agony, we would have no trouble calling that "cruel," regardless of whether any jurisdiction still chose to employ the technique. Similarly, a search for drugs by vivisection can easily be called unreasonable without surveying other countries' views on the subject.
So the principled way of using foreign law for the 8th and not the 4th is to look to the text of the Constitutional provision to determine whether it explicitly invites one to look to other jurisdictions.
(I acknowledge the counterargument that one could look to the various states to determine if something is unusual, and skip foreign jurisdictions, but that is outside the scope of the question).
Oh come now; you're begging the question. The word "usual" could just as well mean "unusual for the jurisdiction". See if the form of punishment is known ahead of time, I can choose to "stay out of dodge"--really when the punishment is too unique it begins to wrankle equal-protection.
I quickly looked at Prof. Tetley's discussion of Scotland -- but it appears that English common law has predominated in Scotland since the mid-1800s, despite the enduring difference in terms. For example, the landmark decision in the UK on negligence is the 1932 "snail in the bottle" case of Donoghue v. Stevenson, a House of Lords decision on a case originating in Scotland, which contains the comment: "It was there held that in determining the question of the liability of the manufacturer to the consumer there was no difference between the law of England and the law of Scotland - and this is not now disputed."
Similarly, there appears to be no difference between British and Scottish law related to the issue in Hodgson v. Macpherson ... at least until post-Wolf.
Anyway, I presume Frankfurter knew more about Scottish law than any of us, and he included it in his common-law precedents, so I'll side with his view.
This made me wonder -- have other countries eventually molded their own versions of the exclusion rule, or is it still pretty uniquely American? And do other countries have an exclusion remedy (or any sort of meaningful sanctions) for violation of Article 36 rights?
So if every other country (except the U.S.) decides to chop off the hands of anyone who steals, then that punishment is no longer 'unusual' within the meaning of the 8th amendment? Give me a break. The courts should not outsource the job of interpreting *our* constitution to foreigners.
In a petition for a rehearing counsel for the plaintiff criticises the citation by this court of Caspersz on Estoppel as follows:
““The author of this work was a barrister at law, advocate of the High Court, Calcutta, and the author does not cite one single modern American authority to sustain the principle of law quoted in the opinion in this case. We do not believe this court prefers to follow the law of India, rather than the law announced by the several states, as well as by American text-writers.””
This criticism shows fine loyalty to the home team, but it does not meet the question whether or not this rank outsider gave a fair answer to the question propounded in the former opinion:
““Why is a person estopped to deny a recital in a contract?”” Moon v. Moon
103 Kan. 179, 173 P. 9
Kan. 1918.
It is quite often not at all obvious what was meant by a particular provision in the Constitution from text itself or the historical record. Where the language or concepts used were widely in use throughout the common law world at the time of ratification, why wouldn't caselaw from from that era from other common law jurisdictions be informative as to the meaning of the language or concepts used? That's not at all the same as looking at some Hungarian statute today and grafting the meaning of that onto a US statute.
You punish the people who actually violated the Constitution instead of punishing the public. Not allowing the evidence to be admitted has mostly served to make the police self-righteously angry at the judges. Illegal searches haven't been eliminated though.
What do you think might happen if officers knew that an unconstitutional search would cost them their careers? Heck, I wouldn't oppose a law making illegal searches a crime punishible by time in prison. The best part of a system that punishes the searchers instead of excluding evidence is that it would also function when no incriminating evidence was found through the unconstitutional search.
Yeah, those colonialists frequently logged onto westlaw to check out what Hungarian cases said in 1789....
i would think that the historical record is clear that many concepts of the us constitution are taken from the english common law, but i'm not a historian. if the evidence showed that the people had their own idea of "ex post facto" and "bill of attainder" etc. that they did not borrow, in toto, from english common law, then of course the original understanding could trump whatever Blackstone said.
I suspect you'd be hard pressed to name one such Congressman, given that it was the state legislatures, not Congress, that did the ratifying.
It's perfectly legitimate to point out that conservatives have used foreign-law arguments when it has suited them.