Only the "contemporary" laws? So having regard to, say, a 19th-century British Sedition Act would be legitimate, but not the 1998 Human Rights Act? Is 1918 long enough ago for the Weimar Republic's Constitution not to be "contemporary"?

I know what Mr Rosenkranz is getting at, but the Amendment would have to spell it out more clearly, ie, "pre-1776 English/ Welsh statute and common law is relevant, where the Constitution does not clearly state or indicate otherwise, but no other foreign law shall be considered".

Tom Round said: "Only the 'contemporary' laws?"

Why yes, do you think activists would want American citizens owing only one exclusive allegiance to America in this day and age through either birth or naturalization?

pre-1776 English/ Welsh statute and common law is relevant

What do you have against Arlen Specter?

I doubt our framers intended us to explicitly divorce our moral and philosophical development of law from the moral and philosophical development of law in European nations.

No, of course they didn't. They intended the influence to run the other way. "New order for the ages", and all that jazz?

But it's a silly amendment. Kinda like responding to somebody speeding by... passing a speed limit. Didn't the 27th amendment prove that the courts wouldn't uphold amendments they didn't like? They're certainly not going to like an amendment that rebukes them this directly. So they'd find some way to moot it.

The author identifies Roper and Lawrence as the problem cases for citing contemporary foreign law. But in Roper at least,, its the text of the 8th Amendmentthat refers to "cruel and unusual punishments." Maybe the author believes that the 8th Amendment was only meant to proscribe punishments that were unusual in 1789, in which case the Amendment is useless in today's world. By definition to know what is "unusual" one must first know what is "usual." What exactly is the problem with looking not only to our states, but also other countries to determine whether a punishment is unusual?

The author rails against using foreign law as a means of "constitutional change," but looking to foreign law in the 8th Amendment context simply gives current content to an unchanging prohibition against punishments that are "unusual." Again, if what's usual must be static, then it is the author that seeks to change the ordinary meaning of the words the framers used.

Snaphappy:

What exactly is the problem with looking not only to our states, but also other countries to determine whether a punishment is unusual?

There might be a little problem some years hence if a majority of the world's people then live under regimes with a stoning-beheading-cut-bits-off philosophy of punishments. Unless, of course, we shamefully apply our own cultural standards to the question.

pre-1776 English/ Welsh statute and common law is relevant

What do you have against Arlen Specter?

Oh God, WIN.

As a thought experiment, and assuming "the contemporary laws of other nations," is meant to include international law and not just municipal laws simpliciter, this strikes me as belonging to the realm of fantasy rather than imagination and thus with regard to thinking about constitutional law and U.S. law generally it has all the fecundity of intellectual solipsism if not masturbation.

We might consider, for instance, and with William Dodge, the following:

Customary international law, or the “law of nations”, was traditionally viewed as part of federal common law. Article I, Section 8, of the Constitution also gives Congress the power to “define the law of nations.” [....]

“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.” These lines from Justice Gray’s majority opinion in The Paquete Habana have become the classic statement of the incorporation of customary international law in the U.S. legal system and the courts’ duty to enforce that law. There was nothing new in this declaration itself, or in The Paquete Habana’s statements about consulting the works of scholars and the evolving nature of international law. Each of these principles dates back to at least the eighteenth century. [....]

To summarize, The Paquete Habana made four important statements about international law: first, that it is “part of our law;” second, that to ascertain it courts may look to “the works of jurists and commentators;” third, that it evolves so that a practice once resting in comity might “ripen into a rule of international law;” and fourth, that resort to international law might not be necessary when there was a “controlling executive . . . act.” Of these four statements, only the last was new to American law, but each of them took on a new significance because of the transition in international law from natural law to positivism. [....]

The law of nations also formed part of the common law for the purposes of criminal prosecutions. [....]

If Justice Gray’s statement that “[i]nternational law is part of our law” was not new, it was nonetheless significant in affirming that this was still true. In the eighteenth century, both the law of nations and the common law were thought to rest upon principles of natural law, and it seemed perfectly natural for judges to articulate and apply the former in the same way that they articulated and applied the latter. By the end of the nineteenth century, however, positivism had triumphed and international law was to be found in state practice and consent. This changed the sources to which Justice Gray would look, but it did not alter the basic principle that courts had an obligation to determine and apply international law. [....]

Early Supreme Court decisions are full of references the “the modern law of nations,”as are the papers of early American statesmen.

Or, the following courtesy of Sarah Cleveland:

Many participants in the debate over the Court’s use of international and foreign sources appear to share a common assumption: that the invocation of such sources is new. [….] The present controversy over resort to international and foreign sources has focused on the Court’s recent due process and death penalty jurisprudence. A broader view of U.S. constitutional history, however, indicates that international law has always played a substantial, even dominant, role in broad segments of U.S. constitutional jurisprudence. […] The Court traditionally has understood our constitutional design as inviting consideration of international law in three fundamental ways. First, in its strongest form, the Constitution directly invokes international law or concepts of international law in clauses ranging from the treaty and war powers to commerce and citizenship. Second, the Court has employed international law as a background principle of constitutional construction, invoking international legal principles to limit the Constitution’s territorial application, to define powers “inherent” in national sovereignty, and to inform principles of federalism. Finally, the Court has looked to international law to construe individual rights provisions, including in cases in which international law establishes governmental interests implicating constitutional rights, and in cases involving rights under the Just Compensation Clause, involuntary servitude, “cruel and unusual punishments,” and substantive and procedural due process, which the Court has read as incorporating common values regarding the basic rights of the person. [….]

As a threshold matter, [an examination of a wide range of cases from various domains of law] flatly refutes two current assumptions: that international law has no role in constitutional analysis and that judicial resort to international law is new. The cases demonstrate that since the nation’s founding, the Court has resorted to international law in constitutional analysis in a wide, and at times surprising, array of contexts. The practice is sufficiently continuous over time and broad in scope that it cannot be dismissed as episodic. The Court’s frequent and longstanding resort to international law clearly belies the suggestion that the Constitution per se prohibits consideration of international norms. At a minimum, those who assert international law’s irrelevance to constitutional analysis must confront and explain these cases.

Even easier solution: Why not do nothing and not worry about addressing a largerly chimerical issue? Can anyone actually point out a decision (a consitutional one, nottreaty interpretation or similr scenarios, which even originalism and textualism accept are situations where foreign law is relevant) where foreign law was actually determiantive and not just a bit of vanity or a note that other countries are doing similar things?

What we really need is a broader amendment endorsing Bork's The Tempting of America as the correct reference guide for constitutional interpretation. Otherwise the same Justices who would want to reference the law of other nations could find other ways to get the result they want, so Rosenkranz's amendment would do little good.

So if a prohibition on "contemporary" foreign law prohibits consideration of a British House of Lords decision decided today, but allows consideration of a British House of Lords decision decided 200 years ago, does that mean that we can consider the House of Lords decision decided today once we've waited another 200 years?

I can't read the article (don't have access to that journal) and am largely ignorant about the use of foreign laws in jurisprudence. (Add to that, I'm not a lawyer.) But aren't there some areas where using foreign laws is acceptable. I'm thinking of three candidates:

1. Comity. I'm not sure I understand what comity is, but doesn't it mean that a nation state usually recognizes a wide array of legal practices performed in other countries? So, for example, if someone gets married in Canada, and that particular marriage does not go against the laws or public policy of the US, the US would recognize that marriage, provided it was legal under Canadian law? I write whereof I know little, but wouldn't this at least involve using foreign laws (in this case, a law in Canada) in jurisprudence?

2. Interpretation of treaties. If the US duly enters into a treaty, which, if I understand the supremacy clause correctly, is to be considered as part of the "law of the land," isn't it at least plausible that a court's interpretation of a treaty would hinge to some degree on how courts in the other country interpret the same treaty?

3. Cases of first impression for which the constitution offers no clear answer. If a case arises in which it is unclear what the constitutional rule of law should be, and in which there is little precedent in US law, is it really wrong for a court to consider how other countries resolve the issue? I'm not saying the practices of other countries should be dispositive for how our courts interpret the constitution, but they might offer some guidance for our courts.

Primunary, the crime of introducing foreign law, was punishable in medieval England by was life imprisonment and the forfeiture of his entire estate. Ironically enough, I think that particular foreign law should be incorporated.

A solution in search of a problem.

While such an Amendment might make some people feel warm &fuzzy, I strongly suspect that it would accomplish absolutely nothing. Whatever concepts some Justices might otherwise like to import from from foreign law they can just as easily impose by relying upon such vague and flexible standards as "the evolving standards of civilized behavior" and many other vapid rationalizations they are prone to embrace. Let's just face it: the problem lies not with any shortcoming of our written Constitution, but with the willingness of our Supreme Court (and certain of the Justices in particular) to depart from the Constitution whenever the result required by following the plain language of the Constitution conflicts with their own notions of "justice". No amount of editing in the Constitution will solve the problem of unfaithfulness in those entrusted to enforce it.

"Ordained"... Sounds religious to me...

Jam: "My proposed amendment: "

Yes! Nullification yesterday, nullification today, nullification forever.

Of course it didn't work out too well in 1833.

corneille1640: the proposed amendment applies only to constitutional interpretation, not interpretation of treaties or marriage laws.

No, Zuch, I would think that his amendment -- which I consider flawed -- would simply consider country X forbidding something to be irrelevant.

But you keep arguing with your straw man and I'm sure you'll win on volume.

Bob

Zuch, we already have that:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

<blockquote>
This Constitution was ordained and established by the citizens of the ratifying States, so it shall be construed only by the laws of the united States of America according to the explicitly delegated authorities by the member States.

This would prohibit using state law (including state constitutions) in interpreting the U.S. constitution.
</blockquote>

And the problem would be?

<blockquote>
The Legislatures of the member States are the final arbitrators and judge of which Federal laws are in accordance to the explicitly delegated authorities.

So the state legislature of New York will be free to set its own international trade laws so long as they can command a majority vote in the NY legislature?
</blockquote>

No. In your example all that NY could do is invalidate the treaty within NY.

<blockquote>
The state legislature of Alabama will be free to prohibit interracial marriage so long as they can get a majority vote in the legislature?
</blockquote>

It may be distasteful to me but the Federal government has no role in this matter. To answer your question directly, yes. And the New England States would be free to pass such laws too, BTW.

<blockquote>
All laws not found to be in accordance to explicitly delegated authorities are null and void with the jurisdiction of a member State that makes such a finding.

So the legislature has to vote on every federal law Congress enacts before the law comes into effect in that state?
</blockquote>

Or wait until there is a need for their imterposition on behalf of one of their citizens or of the State.

OK, I'll go ahead and contradict my preceding post and posit an Amendment I'd like to see:

The Supreme Court and such lower courts duly established pursuant to Article III of this Constitution, and the courts established pursuant to the Constitutions of the several States, shall have the power to declare that the laws adopted by the Legislative branch are void as being in conflict with this Constitution only in cases where there is a direct conflict with the clear tenor of the text of one or more provisions of this Constitution, including the Amendments thereto. Every decision of a Court declaring a law void as in conflict with this Constitution shall explicitly recite the provisions of this Constitution relied upon, and shall clearly state the conflict.

In Federalist 81, Hamilton addressed one of the objections to Article III of the Constitution, specifically the claim that the Judicial branch would usurp the authority of the Legislative branch:

"The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body."

Hamilton responded:

"[T]here is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution."

BUT, the standard which Hamilton accepted for the exercise of Judicial Review was set forth in Federalist 78:

"By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

So, my proposed Amendment does nothing but attempt to restore the Balance of Power to what was contemplated when the Constitution was ratified.

Blue:

Zuch, we already have that:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Not sure I follow. What does that have to do with textualism or interpretation? Could you explain?

Cheers,

DangerMouse:

People like Justice Kennedy should've been impeached years ago, along with Ginsberg, Souter, etc....

... and Warren too. Who knows, absent Warren we wouldn't have to put up with the Obamanation ... then again, looking at comments in a few previous EV threads, IC that there's some people that think they have a cure for that too. ;-)

Cheers,

Didn't Hamilton say that the Constitution should be interpreted with the history in mind? If you do otherwise then you will twist the Constitution beyond recognition.

It was Hamilton, Madison or Mason... one of those.

A bit busy right now to look it up

Would this amendment have any effect at all, except to cause Justices to word their opinions slightly differently so as to reference foreign reasoning instead of foreign law?

How about this

"This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the laws, customs, or practices of other nations or international organizations except to the extent that such laws customs or practices were in existence at the time of the ratification of the relevant Constitutional provision."

DrGrishka:

How about this

"This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the laws, customs, or practices of other nations or international organizations except to the extent that such laws customs or practices were in existence at the time of the ratification of the relevant Constitutional provision."

Got that covered (here). ;-)

Cheers,

Even if you accept the Amendment, why does everyont seem to think that The People, at the time of ratification, all had the exact same idea about such vaguries as freedom of the press, or cruel and unusual punishment, equal protection, and due process?

If some people back then had an idea contrary to standard constitutional interpretation, are we supposed to just ignore them, or incorporate them?

I guess this amendment sounds to me like a solution in search of a problem.

"I don't see any cases where SCOTUS has improperly relied on foreign laws as its primary basis for a ruling. Can anyone provide any counterexamples? "

Many have asked, none have responded. I think it's safe to say there are none. The thought experiment should remain just that.

>Not a big fan of 17th and 18th century history, huh?

I don't know whta you mean by this. Are you suggesting the the founders rejected the moral and philosophical development of law found in the 1600s and 1700s?

Surely you're not suggesting that in particular our founding documents aren't hugely indebted to those developments?

I do know, your insult notwithstanding (and your argument not existing) that the way in which 18th and 19th century Europe evolved is in many respects far removed from the American course. But my question was, did the founders intend for an explicit and absolute divorce in terms of interpreting our laws? Did they mean to bar us from consulting the law of other nations to consider how they resolved a problem, and perhaps incorporating their decisions into our reasoning? That's what's at isse here. As others pointed out, it's hard to name a case decided principally in reference to the laws of other nations. This would bar "construing" via consultation.

Then, even the amendment itself undercuts the implication of your post, as it only applies to contemporary law -- it leaves untouched any affinity from the 17th and 18th century.

But that's all a minor point.

Certainly not Hamdi.

In Hamdan, the issue was whether one interprets common portions of the Geneva Conventions through protocols which, though signed, were never ratified. Of the three dissents, the only one I saw that addressed this was that of Thomas, who argued that the Geneva Conventions were pre-empted by WWII jurisprudence anyway.

This is not the same as relying on foreign laws or statutes, and seems more similar to relying on congressional testimony as to INTENT of the law.

Randy R:

Many have asked, none have responded. I think it's safe to say there are none. The thought experiment should remain just that.

The thought experiment then would reach the conclusion, "Nothing would change."

I'm with the skeptics on this thread. The proposal would make the judicial task unnecessarily difficult and less transparent.

Take something like proportionality balancing. Judges are going to engage in some kind of balancing analysis (I doubt anyone thinks we can eliminate balancing even if they might think - mistakenly, in my view - that such a tack would be desirable). Some sort of reflection on what balancing means might actually make that balancing more consistent, predictable and transparent.

There is a large body of thinking in the rest of the world about proportionality balancing. Some of it happens to have been written by foreign judges acting in an official capacity. Cutting U.S. judges off from that thinking as a matter of constitutional command seems a little silly. What's the point?

You might think that proportionality balancing itself is not particularly useful. But in a world where that view does not prevail among judges, I don't see any point in trying to force judges who might find it useful to obscure their interest by changing their citation patterns. I'd rather know what judges are actually reading.

I take it that the proposal isn't limited only to legislation, but also includes foreign judge-made law. If I'm wrong, then my comment above isn't that relevant, of course.

I looked it up - it was Hamdan.

Inextricably intertwined with the question of regular
constitution is the evaluation of the procedures governing
the tribunal and whether they afford “all the judicial
guarantees which are recognized as indispensable by
civilized peoples.” 6 U. S. T., at 3320 (Art. 3, ¶1(d)). Like the phrase “regularly constituted court,” this phrase is not defined in the text of the Geneva Conventions. But it must be understood to incorporate at least the barest of
those trial protections that have been recognized by cus-
tomary international law. Many of these are described in
Article 75 of Protocol I to the Geneva Conventions of 1949,
adopted in 1977 (Protocol I). Although the United States
declined to ratify Protocol I, its objections were not to
Article 75 thereof.

This quote is from p. 70 of the slip opinion, but I didn't look it up in the official reporter.

It was not Scalia who objected, but Kennedy's concurrence, which said the plurality should not have reached the questions. p. 19 of his opinion.

This is not merely a matter of treaty interpretation - it's using law that the United States specifically declined to ratify to decide a case before the United States Supreme Court. An analogue to this would be to apply the Kyoto Treaty when Mass v. EPA came up (if that specific issue had been part of the case).

Okay, then. Judges can't peek at the laws of France or, worse, Sweden. Can they still find an "evolving consensus" in the laws of Massachusetts or New Jersey? Or do only Red States have persuasive authority? Perhaps the Amendment should be clarified further to add "... or the statute and common law of any State in which candidates for President of the United States who support the inclusion of 'Under God' in the Pledge of Allegiance received at least 45 per centum of the popular votes (or a plurality, whichever be the lesser) in at least three (3) of the past four (4) elections."