Charles Lane has an interesting piece in today’s Washington Post about the history of the death penalty in Germany. According to Lane, the German law abolishing the death penalty in 1949 was passed at a time when 77% of German citizens (according to one poll) were in favor of the death penalty for ordinary crimes. The law passed not out of a conviction that the death penalty was inhumane, but rather as an effort to prevent the execution of Nazi leaders by the American and British postwar authorities. According to Lane:
[The 1949 law] was in fact the brainchild of a right-wing politician who sympathized with convicted Nazi war criminals — and sought to prevent their execution by British and American occupation authorities. Far from intending to repudiate the barbarism of Hitler, the author of [the German anti-death penalty law] wanted to make a statement about the supposed excesses of Allied victors’ justice.
Lane’s piece is a bit odd in that it overlooks public opinion in Germany today, which I understand is in fact strongly opposed to capital punishment. So path-dependency problems aside, it seems highly likely that German law would have abolished the death penalty eventually even if it hadn’t done so in 1949.
Still, I think Lane’s story raises some interesting questions for those who believe that foreign law and practice is relevant to the proper interpretation of the United States Constitution. As far as I know — and please correct me if I’m wrong — those in favor of considering foreign law and practice generally do not advocate looking at the reason or circumstance of the forces that led to the foreign law’s adoption. What matters is that the law is on the books, not how or why it got there. If I’m right about that, does that mean that the efforts by pro-Nazi sympathizers in Germany to stop U.S. authorities from executing Nazi war criminals could in theory shape the meaning of the U.S. Constitution?
It’s an interesting question, I think, because my sense is that proponents of citing or relying on foreign law in U.S. constitutional decisionmaking usually assume that foreign law reflects a resolution of the same issues the Supreme Court is confronting. Foreign law is a relevant testing ground because the issues and tensions are assumed to be similar. But what if foreign law is passed for a quite different reason, such as seems to be the case with Germany and the death penalty? Is it equally relevant? Less relevant? Is the U.S. Supreme Court supposed to look to the history of each country’s law and determine whether it was enacted for reasons similar to those explored in the constitutional arguments before the Court before considering it as relevant or even just citing it? Or is the Court supposed to look not to why the law was passed, but rather to recent opinion polls in those foreign countries that might suggest why people in those foreign countries still support the law, or even if they do?
I’d be very interested to hear from proponents of citing or relying on foreign law about the answers to these questions. I have enabled comments. As always, civil and respectful comments only.
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