A Constitutional Amendment on Foreign Law:

The morning plenary panel at the Federalist Society's annual lawyers' convention concerns "he Constitution & American Exceptionalism: Citation of Foreign Law." First up is Georgetown University law professor Nicholas Rosenkranz who lays out the basic case against relying upon foreign or international law in constitutional interpretation. Rosenkranz makes several points (and my summary us unlikely to do justice to his remarks). The Constitution, he notes, draws its legitimacy from the consent of the governed and the American Revolution was motivated, in part, in opposition to the imposition of foreign rule on the colonies. Thus it would be quite incongruous for the meaning of the Constitution to be dependent upon the decisions and views of foreign governments or international institutions, rather than the considered views of the American people. Changing the meaning of the Constitution, Rosenkranz notes, is to be done through constitutional amendment, not the changing conceptions of justice embraced by foreign governments and international organizations.

The most interesting part of Rosenkranz's remarks is a proposal for a constitutional amendment declaring that foreign and international law should not be relied upn to interpret or construe the U.S. Constitution. At one level this is quite a radical proposal — perhaps killing a gnat with an elephant gun, Rosenkranz acknowledges — but Rosenkranz offers a few reasons why such an Amendment would be quite in line with the American experience. First, Rosenkranz notes, there is precedent for amending the constitution with rules of constitutional construction. Both the 9th and 11th Amendment are, by their own terms, rules of interpretation, explaining that the Constitution should not be interpreted in a particular fashion. Further, Rosenkranz observes, both Amendments stated interpretive rules that (at least many of) the Founders believed should have gone without saying. They reaffirmed the prevailing understanding of the constitutional text more than they amended it (though the 11th Amendment also overturned a Supreme Court opinion adopting a contrary view). There should be little doubt, in Rosenkranz's view, that the Founders would have also disapproved of relying upon foreign law in constitutional interpretation. So such an amendment would help reinforce, or perhaps restore, an original understanding of the Constitution, and reinforce the idea that the American Constitution as the ultimate expression of the will of the American people.

Now I don't for a minute expect such an amendment to pass — nor, do I suspect, does Professor Rosenkranz. Yet if reliance upon foreign and international law in constitutional interpretation is wrong, as Rosenkranz argues, there is nothing particularly incongruous about saying so in the Constitution. His is an interesting proposal that may help inform discussion and debate over the role of foreign law in constitutional interpretation.

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A Danger of Using Foreign Law to Interpret US Law:

The use of foreign law to interpret the US Constitution is a complex subject that too often gets caught up in sound bites. Although at this point, the Supreme Court's use of foreign law in this way has been extremely limited, I have several concerns about proposals to increase that reliance. In this post, I'll just briefly mention one that hasn't gotten enough attention: the Court's lack of relevant expertise.

For a Supreme Court made up of generalists, even keeping up with all the US law that the Court has to deal with is a full-time job, one that the justices often fail at. But at least a justice addressing an issue of American law that he is unfamiliar with has the advantage of dealing with a body of law embedded in a broader legal system that he has at least some understanding of. By contrast, few if any justices have extensive knowledge of foreign legal systems. As a result, justices interpreting foreign law are likely to misunderstand the context of that law, and also to misunderstand relevant differences and similarities between the US and the foreign jurisdiction in question. Thus, even if it is theoretically possible for the Court to mine valuable insights from foreign law, it is unlikely that the real-world Court will actually be able to do so. This lack of expertise may help explain why those justices who do rely on foreign law never seem to do a systematic survey of the relevant foreign precedents, but instead simply pick a few examples that seem to support their position. To take an example from an area of law I'm familiar with, Justice Stephen Breyer sometimes relies on foreign law to justify his positions on federalism issues, as in his famous dissent in Printz v. United States. However, he has never confronted the fact that many federal systems in other democracies (e.g. - Germany) have fairly extensive judicial review of federalism issues, with judges using their power to limit the authority of the central government. Breyer, of course, has taken the position that the US judiciary should virtually never restrict federal government power on federalism grounds. Similarly justices such as Breyer and others who endorse the Court's abortion precedents routinely ignore the fact that most other nations impose more extensive constraints on abortion than would be permitted under US Supreme Court precedent.

These two examples are drawn from the work of liberal justices. However, I doubt that the conservative justices would be much better if they too started to rely on foreign law to buttress their positions in constitutional cases.

Related Posts (on one page):

  1. The Rosenkranz Amendment on Foreign Law:
  2. A Danger of Using Foreign Law to Interpret US Law:
  3. A Constitutional Amendment on Foreign Law:
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The Rosenkranz Amendment on Foreign Law:

My post on a proposal by Georgetown law professor Nick Rosenkranz for a constitutional amendment barring the use of foreign law in constitutional interpretation prompted extensive comment. The post was based on a presentation Prof. Rosenkranz made on a panel at the Federalist Society's annual lawyer's conference. Audio and video of the panel are now available here.

To recap the argument, Prof. Rosenkranz proposed a consitutional amendment stating that foreign law should not be used in constitutional interpretation. To be clear on what this proposal entails, it would not bar examination of historical texts, even those from abroad (such as pre-ratification English common law court decisions, Blackstone, etc.) that may help elucidate the meaning of constitutional provisions. It would, however, preclude judges from looking to contemporary sources of foreign law when seeking to discern the meaning of constitutional text. This would not be a new rule of constitutional interpretation, Prof. Rosenkranz argues, but a restatement of the original understanding. As he explains in this paper, "the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states." Like the 9th and 11th Amendments, it would be a restatement of an interpretive rule that had been implicit in the document. However much I am suspicious of constitutional amendments, I think the underlying arguments are important and worth serious discussion.

I should also note that Prof. Rosenkranz was joined on the panel panel by his colleague Vicki Jackson, Yale's Akhil Amar, and the Honorable Frank Easterbrook. All gave interesting remarks, so the whole panel is worth watching (or podcasting).

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