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Justice Scalia endorses reliance on foreign legal practices.
Two years ago, Ring v. Arizona (in which Justice Scalia concurred) held that the Jury Trial Clause requires juries, not judges, to find the basic facts underlying the aggravating factors that cause the imposition of a death sentence. But what to do about people who had already been sentenced under the old scheme, and whose sentences were now being reviewed via habeas corpus?
The standard doctrine generally says that new constitutional rules aren't retroactive as to habeas cases, unless the new rule is needed to make the judicial process substantially more accurate. So does the Ring jury trial requirement qualify? In Schriro v. Summerlin, which was decided a few weeks ago, Justice Scalia (writing for the five conservatives) held that it doesn't — and here's the core of his argument:
The question here is not, however, whether the Framers believed that juries are more accurate factfinders than judges (perhaps so — they certainly thought juries were more independent). Nor is the question whether juries actually are more accurate factfinders than judges (again, perhaps so). Rather, the question is whether judicial factfinding so "seriously diminishe[s]" accuracy that there is an "'impermissibly large risk'" of punishing conduct the law does not reach. The evidence is simply too equivocal to support that conclusion.
First, for every argument why juries are more accurate factfinders, there is another why they are less accurate. . . . Members of this Court have opined that judicial sentencing may yield more consistent results because of judges' greater experience. Finally, the mixed reception that the right to jury trial has been given in other countries, though irrelevant to the meaning and continued existence of that right under our Constitution, surely makes it implausible that judicial factfinding so "seriously diminishe[s]" accuracy as to produce an "'impermissibly large risk'" of injustice. When so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot confidently say that judicial factfinding seriously diminishes accuracy.
This is a sensible argument, and the distinction Justice Scalia draws with regard to foreign practices — not relevant to the meaning of the right, which should be decided with reference to the Framers' views and American traditions, but relevant to empirical questions, such as those that the Court's retroactivity rules raise — is a plausible one. But it's important to note that even Justice Scalia, a firm critic of certain kinds of reliance on foreign practices, finds it proper to draw such distinctions, and to consider foreign practices in some situations.
I think critics of some Justices' use of foreign law — especially the shrillest critics, who denounce such use as a near betrayal of the Justices' oath — should keep these distinctions, and other similar ones, in mind. Thus, for instance, the reference to foreign attitudes in the Lawrence v. Texas majority may be different from the reference to such attitudes in the Grutter race preferences case, and still other uses of foreign practices might be treated differently still.
For more on this, see here, here.
Scalia-Breyer Debate on Foreign Law in U.S. Courts:
There'll be a debate between Justices Scalia and Breyer on the use of foreign law in U.S. courts at American University Law School in Washington, D.C., this Thursday, Jan. 13, 4-5:30 pm EST. . . .
You should be able to find a button under videoconferencing here, which when the event begins will take you directly into CSPAN's live feed (CSPAN will be broadcasting the event).
The event will also be archived on video, and a transcript will be published in PDF, on the school's website. For more on the issues, see here.
Baude on Roper on Foreign Law:
Will Baude offers thoughts on the use and misuse of foreign law in Roper v. Simmons at The New Republic Online.
Foreign Law and the Culture Wars:
In an essay at American Prospect Online, Deb Pearlstein argues that it is perfectly normal for the U.S. Supreme Court to discuss and cite to foreign law in the course of interpreting the U.S. Constitution — and that conservative opposition to the practice is groundless: Like the bogeyman critique of "judicial activism," "foreign law" seems to have become the latest stand-in straw man for those who aim to cast fundamentally political opposition as a principled objection. It is hard not to conclude that vocal opponents of "foreign law" are driven less by any real threat to U.S. legal sovereignty than by the fear that even a conservative judge might embrace a legal rule with which they disagree. But that danger is also long known to the United States; it is the necessary price of the rule of law. I think Pearlstein misses the point. The real issue isn't sovereignty, but the culture wars. The Supreme Court's citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism. The kinds of foreign countries that a Supreme Court Justice might know best mostly don't share this sociopolitical divide: in those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars. Of course, the Supreme Court has to rule one way or another in its cases, so in one sense it has to take a side. But citing and discussing foreign law for "confirmation" of a Constitutional holding does more than rule one way or another: it is a reflection of cultural association, an indication that at least some Justices envision themselves as part of a community that happens to be strongly identified with one side of these highly contested debates. Those that object to foreign law are not really concerned that foreign law is somehow binding on the United States, or that it represents a loss of U.S. sovereignty. To the contrary: it is the very fact that such law is obviously not binding under traditional methods of constitutional interpretation that makes the discussions of foreign law most objectionable to its critics. The fact that foreign law isn't binding, but that the Justices have gone out of their way to mention it anyway, fosters the impression that the Justices identify themselves with a side in the culture wars. If you're unpersuaded, try this experiment. Imagine that instead of citing foreign law in its decisions, the conservative majority on the Court started citing to and discussing the Bible. In particular, let's imagine that Roper v. Simmons had come out the other way, and that Justice Kennedy's opinion for the Court upholding the death penalty for 16 and 17 year olds had contained the following passage: Our determination that the death penalty is proper punishment for offenders under 18 finds confirmation in the fact that such punishment is recognized in the Judeo-Christian Bible. The Bible repeatedly requires capital punishment for many offenses, and nowhere limits this punishment to those 18 years of age. See, e.g., Levitucus 24:17 ("He that killeth any man shall surely be put to death."); Exodus 21:16 ("And he that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death."). Indeed, the death penalty is mandatory for a number of affronts against parents, which presumably would encompass many offenses by minors. See, e.g., Exodus 21:17 ("And he that curseth his father, or his mother, shall surely be put to death."); Exodus 21:15 ("And he that smiteth his father, or his mother, shall be surely put to death.").
This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet our ancient traditions and cultural heritage are instructive for the Court's interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments." It is proper that we acknowledge the overwhelming weight of authority in the Bible in favor of the juvenile death penalty. Cf. Zorach v. Clauson, 343 U.S. 306, 313 (1952) ("We are a religious people whose institutions presuppose a Supreme Being."). The opinion of our Judeo-Christian traditions, while not controlling our outcome, does provide respected and significant confirmation for our own conclusion. It does not lessen our fidelity to the Constitution to acknowledge that the express affirmation of certain fundamental rights recognized from the time of Abraham simply underscores the centrality of those same rights within our own heritage of freedom. My sense is that most people who have no problem with the Court citing foreign law would blow a gasket if this passage appeared in the United States Reports. You can imagine the reaction: What on Earth gave the Supreme Court the idea that they can rely on the Bible? This is the Constitution, not church! If some people want to believe in the Bible, that's up to them, but this is America and they can't foist that Bible stuff on me! Why the strong reaction? Not because "liberals" really only object to "conservative" results (although you can imagine the NRO column making this argument, can't you?). The reason, I think, is that Biblical text tends to be associated with one side of the sociopolitical divide and is not a traditional source of constitutional guidance. As a result, seeking "confirmation" of a constitutional holding in the Bible would send a message that the Justices are not just interpreting the Constitution — they would be doing more, expressing personal views as to which side of the sociopolitical divide they see as their own. To be sure, the analogy between foreign law as authority and the Bible as authority isn't perfect. I realize that. But I think it does capture why some conservatives feel so strongly about citations to foreign law in Supreme Court opinions.
Justice Scalia is Afraid, Justice Thomas Is Not Smart Enough:
Maybe I'm missing something, but that seems to be law professor Michael J. Kelly's suggested answer to the question of why Justices Scalia and Thomas object to citing foreign law in the course of interpreting the U.S. Constitution. In a guest post over at ACSBlog, Kelly describes Thomas and Scalia as "isolationists," with a "rigid preference for judicial isolationism" that blinds them to the benefits of looking abroad for new solutions. Kelly contrasts Thomas and Scalia with Justice Breyer, who seems interested in foreign law because he thinks we might learn something from the experience. Reflecting on Breyer's curiosity about foreign law, Kelly concludes: Perhaps this intellectual curiosity is exactly what Scalia and Thomas rail against [when they object to citing foreign law]. Scalia because he is afraid of the weaknesses it could reveal in his originalist philosophy; Thomas because he has no intellectual curiosity. So let me get this straight. Justice Scalia won't cite international law because he is afraid of defending his views of originalism? Given that Justice Scalia has been touring around the country giving lectures defending his philosophy and engaging in extensive Q-and-A sessions, often before before quite hostile audiences, that seems a rather strange suggestion. The claim that Justice Thomas "has no intellectual curiosity" is just lame, offered (of course) with no evidence or explanation. Any one who has ever had a conversation with Justice Thomas would recognize the suggestion as absurd. You can agree or disagree with Thomas's deeply-held views, of course, but to interpret profound disagreement as lack of curiosity seems a bit out-of-bounds.
More on Citations to Foreign Law:
Professor Michael Kelly has responded to my post on the fact that Justice Scalia and Justice Thomas are opposed to discussing foreign law in the course of interpreting the U.S. Constitution. As I noted in my earlier post, Professor Kelly's initial essay suggested that Justice Thomas doesn't cite foreign law because he lacks intellectual curiosity, and that Justice Scalia refuses to do so because he is afraid that citing foreign law will make it hard for him to defend originalism. Professor Kelly offers a more complete explanation in his new post. Here is his explanation of why he thinks lack of intellectual curiosity explains Justice Thomas's failure to cite foreign law: The intellectually curious have an innate hunger for more knowledge, are rarely satisfied with one solution to a problem and are drawn to compare - as Justices Stevens, Kennedy, O'Connor, Breyer and Ginsberg do when they cite to decisions of foreign courts. They also often tend to see the world in shades of gray rather than in starkly black and white terms - which admittedly can be a handicap if they are policymakers. Even Rehnquist demonstrated this natural compunction in Glucksberg when he noted the experience of The Netherlands as he was rejecting a right to euthenasia.
I have not had as many conversations with Justice Thomas as Prof. Kerr has to refute his claim of first-hand knowledge to the contrary. All I have is Thomas' writing to form my opinion, which I have done. And his resistance to citation of foreign court judgements appears not be based on anything other than not wanting to deal with it. I'm not sure I follow the reasoning here. By what theory does judicial citation serve as an indicator of "intellectual curiosity" and "innate hunger for more knowledge"? Citing foreign law is easy; you just pick up a brief and cut and paste some citations. As far I can discern, that neither requires nor correlates with "innate hunger for more knowledge." And why is comparative international practice the relevant metric for intellectual curiosity? Why not use discussions of American legal history instead? If you pick legal history as the guide, then you will conclude that the more originalist Justices are the only intellectually curious Justices on the Court. More generally, what about Justice Thomas's opinions leads Professor Kelly to conclude that he in particular lacks intellectual curiosity? For the second post in a row, he does not say. In his explanation for Justice Scalia's refusal to cite foreign law, Professor Kelly acknowledges that Justice Scalia "has a philosophical reason for resistance." Justice Scalia does not cite foreign law because in his view it is irrelevant. Professor Kelly continues: [That] is why I posed the question of what he may be afraid of (again, I don't know the answer), although I suspect it could be that originalism is not used widely by foreign courts. If it were, perhaps he would have occasion to cite them. However, his bigger fear (again guessing here) may be that a slippery slope exists. If judges begin citing foreign law as non-mandatory, how long will it be before they begin using it to decide cases? Again, I'm not sure I follow. Justice Scalia sees foreign law as irrelevant because foreign decisions do not even claim to be interpretaions of the U.S. Constitution. The foreign decisions are interpretations of foreign law, not U.S. law. Why would we think it odd — or, in this case, a sign of fear — not to discuss something that doesn't even claim to be relevant to the case? It seems to me that the normal judicial practice is to not cite that which is deemed irrelevant; I'm not sure why that doesn't fully explain Justice Scalia's practices. Justice Scalia doesn't discuss the Bible in his opinions on constitutional law, either. Should we conclude that he is afraid of religion? In any event, I hope I'm not being unfair in my response. I have enabled comments just in case; I am confident that VC readers will set me straight. As always — you knew this was coming, didn't you? — civil and respectful comments only. UPDATE: I have deleted two comments already because they were neither civil nor respectful. Sorry to police things like that, but I don't open up comments so commenters can hurl insults.
Germany, the Death Penalty, and the U.S. Constitution:
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.
Breyer on Giving Foreign Courts "A Little Boost Sometimes":
In a talk yesterday at the American Bar Association annual meeting, Justice Stephen Breyer gave an intriguing reason why he thinks the U.S. Supreme Court should cite foreign law: It can give "a little boost" to the judiciaries of other countries, helping to advance the rule of law outside the United States. Here's what Breyer said, in the course of justifying the practice of citing foreign law: "To tell you the truth, in some of these countries, they're just trying to create these independent judicial systems to protect human rights, contracts. If we cite them sometimes — not as binding, I promise, not as binding --well, that gives them a little boost sometimes . . . It sort of gives them a leg up for the rule of law." This reminds me a bit of the remarks by Justice Stevens in May suggesting that the U.S. Supreme Court should cite foreign courts to make sure that the U.S. Supreme Court remains influential outside our borders. It also seems to be another piece of evidence supporting the "shout out" theory of citing foreign courts offered by Professor (and former Breyer clerk) Tim Wu in Slate last year. Your thoughts?
Justice Ginsburg on Foreign Law and the U.S. Constitution:
I haven't followed the debate over the use of foreign precedents, international treaties, etc., to interpret U.S. law as closely as I should. Thus, I was, but perhaps shouldn't have been, surprised and rather horrified to read this speech by Justice Ruth Bader Ginsburg. For example, she writes:
Interpreting U.S. Supreme Court precedent, a divided U.S. Court of Appeals for the District of Columbia Circuit held in 1989, during my tenure on that court, that foreign plaintiffs acting abroad - plaintiffs were Indian family planning organizations - had no First Amendment rights, and therefore no standing to assert a violation of such rights by U.S. officials. In particular, the Indian organizations complained of a condition on U.S. grant money: the recipients could not engage in any abortion counseling, even in a separate entity funded by non-U.S. sources. In dissent, I resisted the notion that in an encounter between the United States and the people of another land, "the amendment we prize as 'first' has no force in court." I expressed the expectation that the position taken in the Restatement (Third) of Foreign Relations would one day accurately describe our law. "[W]herever the United States acts," the Restatement projects, "'it can only act in accordance with the limitations imposed by the Constitution.'"....
Among examples from that [October 2002] Term, I would include the Michigan University affirmative action cases decided June 23, 2003. Although the Court splintered, it upheld the Michigan Law School program. In separate opinions, I looked to two United Nations Conventions: the 1965 Convention on the Elimination of all Forms of Racial Discrimination, which the United States has ratified; and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which, sadly, the United States has not yet ratified. Both Conventions distinguish between impermissible policies of oppression or exclusion, and permissible policies of inclusion, "temporary special measures aimed at accelerating de facto equality." The U.S. Supreme Court's decision in the Michigan Law School case, I observed, "accords with the international understanding of the [purpose and propriety] of affirmative action."
Indian plaintiffs (that is, residents and citizens of India) should have the right to go to U.S. courts and have them tell Congress how to spend U.S. taxpayers' money? The Supreme Court should rely on a "Convention" that the U.S. hasn't ratified? The meaning of the Fourteenth Amendment should be determined, in part, by "Conventions" ratified by such paragons of equality as Cuba, Libya, Syria, Saudi Arabia, Burundi, Burkina Faso, Chad, China, Kazakhstan, Vietnam, and so on, which therefore represent "international understanding"? I don't know whether to laugh or to cry.
Thanks to reader John J. Vecchione for the tip; his thoughts on the speech can be viewed here (3/16, no permalink available).
Against Impeaching Justice Ginsburg Over the Use of Foreign Law.--
A few days ago, John Hinderaker had a long post criticizing Justice Ruth Bader Ginsburg's defense of the Supreme Court's use of foreign law. Paul Mirengoff adds to John's post the statement:
It won't happen, of course, but I think there's a case to be made for impeaching Justice Ginsburg.
Paul then repeats his claim in a post of his own:
Last night, John criticized Justice Ginsburg for her speech in South Africa defending the use of foreign law and court decisions to interpretation of the American Constitution. I suggested that a good case can be made that Ginsburg should be impeached. That case will become even stronger to the extent that her willingness to use foreign law continues to inform her opinions.
I find the current debate over the Supreme Court's reference to foreign law somewhat strange, since the Supreme Court has cited foreign law for almost all of its history. In a new manuscript by my colleague Steve Calabresi and Stephanie Zimdahl, they document nearly all the uses of foreign law in the Court's history. It can be downloaded from SSRN at the end of their long abstract here.
Calabresi and Zimdahl take a somewhat more nuanced approach than does either Justice Ginsburg or her critics:
This Article [describes] . . . what the Supreme Court's practice has actually been from 1789 to 2005 with respect to citing foreign sources of law. We will show that the Court's citation of foreign sources of law in recent years is not unprecedented as Justice Scalia implies, but that citation to foreign sources of law is increasing in the modern era in ways that may be very problematic. We show that there have been some dramatic, if not notorious, instances of the Court citing foreign sources of law historically, as happened for example in the Dred Scott case and in the anti-polygamy case, Reynolds v. United States. Moreover, we will show that the debate over citing foreign sources of law in American judicial decisions is not a new one at all. Indeed, the practice was debated as early as 1820 when Justice Livingston, in a sentiment echoed many years later by Justice Scalia, responded to Justice Joseph Story's citation of foreign sources of law in a Supreme Court case to provide a definition for the crime of piracy, by stating that it it is not perceived why a reference to the laws of China, or to any other foreign code, would not have answered the purpose quite as well as the one which has been resorted to. Thus, Scalia's modern lament finds an echo as long ago as 1820 in the U.S. reports. . . .
This article thus examines the many instances between 1789 and 2005 in which the Court has cited foreign sources of law and points out that several themes become apparent. First, on some occasions, the Court cites such sources as evidence of the reasonableness of its decisions: foreign practice is reviewed as to whether an American practice is reasonable or unusual. Second, we think it is striking that the three Justices who have historically been most likely to cite foreign sources of law in their opinions, Justices Joseph Story, Felix Frankfurter, and Stephen Breyer, were all, at some point in their careers, professors at Harvard Law School. This suggests a Harvard nexus to the debate over citation of foreign sources of law, which has gone previously unobserved. . . .
Our analysis of the Court's practice leads us to several conclusions.
First, we believe those who say the Court has never before cited or relied upon foreign sources of law are clearly and demonstrably wrong. In fact, the Court has relied on such sources to some extent throughout its history.
Second, the Court has, however, cited foreign sources of law with much more frequency in far more important constitutional cases in recent years, as Justice Scalia has suggested, and in addition the Court has tended to cite foreign sources of law in some of its most problematic opinions such as Dred Scott, Reynolds, and Roe v. Wade. This suggests Scalia is right to be wary of the Court's new trend in this direction.
Third, as Professor Calabresi has argued elsewhere, citation to foreign law is most justifiable when the U.S. Constitution asks the justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. In contrast, citation to foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States. In these cases, we agree with Justice Scalia that the Court's task is to interpret the original meaning of our Constitution and not to determine the current day reasonableness or unusualness of a legislative practice. We thus think, with Justice Scalia, that in the over-whelming majority of non-Fourth and Eighth Amendment, it will not be appropriate for the Supreme Court to cite foreign sources of law. Citation of such law is, in fact, a sign that the Court is falling into policy-making, as it did in Dred Scott, Reynolds, and Roe v. Wade, and this in turn suggests the justices are behaving illegitimately.
While John and Paul make several good points in their critiques of Justice Ginsburg's speech on foreign law, the case for Justice Ginsburg's impeachment is neither outlined by Paul, nor do I see any serious basis for it.
I don't know whether a Justice should ever be impeached for holding a bad judicial philosophy, but such a philosophy would have to be far more unusual than Justice Ginsburg's to form a plausible basis for impeachment. By the way, I don't read Paul as actually advocating that Ginsburg be impeached, just opining that a "good case" could be made for such a move.
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: [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.
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. 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.) 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.
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.
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.
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).
What Does Foreign Law Teach Us About the Constitutionality of Methods of Execution?:
Several Supreme Court Justices believe that foreign law and practice can help elucidate the meaning of the United States Constitution. They contend that the experience and practices of other countries are relevant to the meaning of our founding charter; what works for other countries may work for us, and we need to be open-minded to the practices and experiences of other nations rather than be arrogant and think other countries have nothing to teach us. This raises an interesting question for those following Baze v. Rees, next week's case on the constitutionality of methods of execution: In countries that have the death penalty, how do they carry out their executions? Unfortunately, I couldn't find a good summary of the methods of execution in all 74 countries that have the death penalty. However, I did learn that the clear leader in terms of experience with capital punishment is China: It is estimated that China is responsible for about 80% of the executions worldwide every year. In China, the traditional method of execution appears to be the firing squad. Here's how one website described the process: Executions are often carried out immediately after a public sentencing rally and the criminal's family is made to pay for the bullet. The prisoner's arms are shackled behind them and they are made to kneel down before receiving a single bullet fired at close range into the back of the head or neck by a soldier or policeman or by a bullet fired into the heart from behind using an automatic rifle. However, there is a growing movement in China to replace this with lethal injection; lethal injection was first used about ten years ago and appears to be gaining in popularity as a more humane method of execution. According to the USA Today, lethal injection in China is implemented using so-called "death vans," mobile execution chambers that travel from town to town. One person has estimated that as much as 40% of Chinese executions currently are carried about by the "death vans" instead of by firing squad. Unfortunately, I was unable to find anything on the specific cocktail of drugs the "death vans" use to carry out executions in China. In any event, China is of course only one example. Those who believe foreign practices are relevant to the meaning of the U.S. Constitution would want to look more broadly at many other nations, including Saudi Arabia and Iran, two countries with high execution rates. And of course I'm not endorsing this method of Constitutional interpretation: I happen to think practices in China and elsewhere are utterly irrelevant. But I thought it would be interesting to start the inquiry for those who believe that foreign practices inform the meaning of the U.S. Constitution.
Reliance on Foreign Law -- from a Republican Louisiana State Court Judge:
Louisiana law bars marriage between first cousins — but it also provides that foreign marriages should be recognized, even if they would otherwise be illegal, unless they violate "a strong public policy" of the state. This is indeed a traditional rule recognized in many states.
And it makes sense: Marriage is supposed to help people organize their lives around their marital status, and generally speaking that sort of self-organization is helpful to society more broadly (which is why the law specially recognizes and in various ways tries to encourage marriage). If people got married in a foreign jurisdiction, treating them as unmarried in the place in which they move will frustrate their expectations, likely harm one or both parties, and likely cause some harm to the state's interests that marriage advances. A state normally wouldn't want this to happen, unless it's condemnation of this particular marriage is very strong indeed.
In any case, it's clear that Louisiana law recognizes three categories of marriage: (1) A clearly defined category of marriages that may be entered into in Louisiana; (2) a less well-defined category of marriages that may not be entered into in Louisiana but that are recognized if they were validly entered into in another state or country; and (3) a correspondingly not very well-defined category of marriages that aren't recognized in Louisiana at all. The question in Ghassemi v. Ghassemi was whether first cousin marriages fall into category 2 or category 3. And to answer that it is of course not enough to look at the specific details set forth in Louisiana marriage rules (which generally defines category 1 marriages, and doesn't speak in detail to the boundary between category 2 and category 3). One also has to engage in the vaguer inquiry of whether the public policy against first cousin marriage — indubitably a policy that Louisiana law does recognize — is "strong" enough to overcome the general presumption of recognizing even those out-of-jurisdiction marriages that couldn't be legally entered into in Louisiana.
In measuring the "strength" of this policy, the Court of Appeal (in an opinion by Republican Judge Jimmy Kuhn) looked, first, to whether Louisiana law categorically prohibits all first-cousin marriages and sexual relationships; it concluded that there have long been various exceptions to this prohibition. (The court specifically notes "In so concluding we note that the Louisiana Legislature has not expressly outlawed marriages between first cousins regardless of where they are contracted as it has emphatically done in the case of purported same sex marriages" (emphasis in original).) But then, it also looked to various other sources as to the depth of the prohibition on first cousin marriage, including:
"natural law" (which Louisiana courts seem to refer to much more often than do other state courts, perhaps because of Louisiana's civil law tradition; the court cited an old American Law Reports annotation that discussed this subject), "Bible's Book of Leviticus, the font of Western incest laws," the views of other states (of which about half allow some or all first-cousin marriages), the views of other "western countries": "the U.S. is unique among western countries in restricting first cousin marriages."
This strikes me as a pretty reasonable of evaluating the strength of a state's public policy in this particular situation. By definition, we've got a question that under state statutes has no precisely defined answer; the statutes expressly call for courts to determine how "strong" the public policy against the marriage is. The court should then look to other clues to the state's public policy. First, it should see what can be gleaned from other rules within the same state. Second, it should look at those rules that are historically the sources of the state's legal system (and on this point the Bible strikes me as relevant, not because of its religious nature but because of its historical role in shaping European and American incest law). And third, it should look at what similar jurisdictions think about the subject, starting with other states of the same nation but going on to other nations within the same broad culture.
Now I generally agree that American courts generally shouldn't rely on modern foreign law in interpreting the meaning of the U.S. Constitution. It's true that Western countries are often trying to solve similar problems with their constitutions, but American constitutional practices have their own history, rest on their own text, and by design created a constitutional regime that is supposed to be individualized to American life and American political thought.
But I think it's a mistake to overgeneralize this into a broad hostility to the "use of foreign law" in American courts. Using foreign law even to determine the scope of domestic legal principles is often quite sensible, even if not to determine the substantive scope of American constitutional rules — as even Justice Scalia has agreed.
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