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The relevance to our constitution of foreign law

By Robert S. Sargent Jr.
web posted January 31, 2005

The European Court of Human Rights…(and) other nations, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. -- Justice Kennedy, writing for the majority in Lawrence v. Texas. 6/26/03

"International law is no longer a specialty. …It is vital if judges are to faithfully discharge their duties." -- Justice Sandra Day O'Connor in a speech at Georgetown University. 10/27/04

Although it is not new to cite foreign law (students of Constitutional law will remember Trop v. Dulles in 1958 for "evolving standards of decency," but Chief Justice Warren, in this case, also wrote, to justify his position [subject not important]: "The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime."), Justices and judges are increasingly citing foreign law cases to justify positions they take. Is this relevant to United States Constitutional law? For those interested in such exciting subjects (or interested in watching one Justice demolish another), last month, C-Span aired "A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication with U.S. Supreme Court Justices Antonin Scalia and Stephan Breyer." This took place at American University, Washington College of Law.

Throughout the "conversation," Breyer was on the defensive. In speaking of using foreign law, Breyer said, "…what I see in doing this is what I call opening your eyes to things that are going on elsewhere, use it for what it's worth." "…it's an effort to reach out beyond myself to see how other people have done – though it does not control." "So here you're trying to get a picture how other people have dealt with (certain issues). And am I influenced by that? I am at least interested in reading it." "…would I be reasonable to say I'm curious how they (the European Court of Justice dealt with (a case)? I'm not bound by it…but I'm curious. I'm curious."

When asked how he could justify citing judges in Zimbabwe or Jamaica or India, Justice Breyer responded: "Well, of course, no one thinks that you do. I guess that's my – to me. But, I mean, I've tried to explain over the last hour or so that of course I think I'm interpreting the Constitution of the United States. But just as, for example, if in fact in some foreign country it had turned out that when they – I mean, that's why I gave the federal. If , in fact, it showed that a particular legal decision, a particular interpretation if a similar word, had led to a total suppression of all speech, should I not take that into account in interpreting the word "freedom of speech" or applying it in the United States?" Huh?

Oh, well. That's the best he could do. He is curious about foreign law. He is influenced. He is interested in their decisions. He is not bound by it, it is not controlling, so the relevance, then, is that it makes interesting reading. You could say that about Charles Dickens, but why does he cite it to justify opinions? What is the jurisprudence? Justice Scalia answers those questions.

The first thing Scalia does is to point out the selective use of foreign law: "…we are one of only six countries in the world that allows abortion on demand at any time prior to viability. Should we change that because other countries feel differently? Or, maybe a more pertinent question: Why haven't we changed that, if indeed the court thinks we should use foreign law? Or do we just use foreign law selectively? When it agrees with what the justice would like the case to say, you use foreign law, and when it doesn't agree you don't use it. Thus, you, know, we cited it in Lawrence, the case on homosexual sodomy, we cited foreign law – not all foreign law, just the foreign law of countries that agreed with the disposition of the case. But we said not a whisper about foreign law in the series of abortion cases. What's going on here? Do you want it to be authoritative? I doubt whether anybody would say, ‘Yes, we want to be governed by the views of foreigners.' Well if you don't want it to be authoritative, then what is the criterion for citing it? That it agrees with you? I don't know any other criterion to bring it forward."

Justice Scalia summarizes three approaches to interpreting the Constitution. One is to look at history, as he does, and the second is the "evolving standards" approach, which sees issues in terms of what the judges think the standards of decency of American society are. Neither approach cites foreign law. "The only way it makes sense (to use foreign law) is if you have a third approach to the interpretation of the Constitution, and that is I am not looking for the evolving standards of decency in American society; I'm looking for what is the best answer in my mind as an intelligent judge… we have now reached a change in our moral perceptions. I suggest that change is based not upon the theory that you're looking for what the moral perception of America is, but that you're looking for moral perceptions of the justices."

Scalia gives several examples of how it's impossible to compare foreign law with U.S. law. Space allows just one: "…you say every other country of the world thinks that holding somebody for 12 years under sentence of death is cruel and unusual punishment, but you don't know that these other countries don't have habeas corpus systems which allow repeated applications to state and federal court, so that the reason it takes 12 years is because he continues to file appeals that are continuously rejected."

And to sum it up: "But most of all, what does the opinion of a wise Zimbabwe judge or a wise member of the House of Lords law committee, what does that have to do with what Americans believe, unless you really think it's been given to YOU to make this moral judgment."

Foreign law is used to justify positions that go against American jurisprudence. It is used selectively: only those countries that agree with the opinion are cited. Foreign law is different from American law, so how can you use it? And foreign law is used by Justices who don't apply the law, but make moral judgments. All of these arguments kept Breyer on the defensive.

To Scalia's charge that judges who use foreign law use it to justify making a moral judgment (a task our Constitution gives to legislatures), Breyer said, "If in fact you give judges too many open-ended procedures, rules and practices, what you will discover is that a man, a woman who suddenly has this power, for better or for worse, maybe unconsciously, maybe not even wanting to, will substitute her judgment, his judgment for the judgment of the legislature. And that's wrong in a democracy (my emphasis). And everyone recognizes that's a problem, but there is a divergence as to how much we can do about it. And some say that the price of trying to cabin that with very strict procedures, legal rules and processes is not worth the candle. You can control, but the law will become too divorced from life. And there are those who say that isn't the greater danger, the greater danger is the danger of the substitution of the unelected judge as a decision-maker for the elected parliamentarian congress – member of Congress. And I think there is no way, actually to resolve that." Didn't he just say "that's wrong in a democracy?" Justice Breyer shows that he is not only a weak thinker, especially compared to Scalia, but he is not a man of principle. If being a decision-maker is wrong, then you "resolve that" by not doing it. Period.

We need many more of these "conversations" with our Supreme Court Justices as they show the people the kind of judges that need to be and don't need to be nominated at the federal level.

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.


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