Friday, January 14, 2005

Jamin Raskin poses questions about the Scalia-Breyer debate

(Jamin Raskin, a highly distinguished professor of constitutional law at Washington College of Law, American University, sent me the following message today and has allowed me to post it publicly. Responses and comments welcomed:)

Ken-As your friend and colleague at AU, I was very proud of the wonderful debate you put together yesterday between Scalia and Breyer on the question of U.S. Supreme Court invocation of foreign law sources. Thank you also for giving me the chance to pose a question to Justice Scalia; you will notice I was on my best behavior. I'm also one of the liberals who thought Scalia presented the more coherent and pointed argument. But I'd like to pose to you the questions I didn't get to ask Scalia in hopes of advancing the discussion.

1. The first sentence of the Declaration of Independence invokes "a decent respect to the opinions of mankind." If we are not talking about making judgments of the European Court of Justice in any sense binding on us in constitutional adjudication, as Breyer himself emphasized, then why can't the U.S. Supremes also demonstrate rhetorically a "decent respect to the opinions of mankind" by discussing judgments of that court and others?

2. If there's a problem with that, does this mean Justices in the course of constitutional or statutory adjudication should never invoke either as rhetoric or as persuasive or analogous authority any sources not directly relevant to the merits resolution of a claim, i.e. the Bible (that was the one I refrained from asking Scalia), the Declaration of Independence, Shakespeare, popular lines in the movies? Check out Rehnquist's melancholy dissent in Texas v. Johnson where he cites about 25 poems, short stories and novels that celebrate the American flag. All of that was certainly irrelevant legally; was it also illegitimate as a form of legal rhetoric? Scalia, himself, you know frequently references pop culture, the movies, books etc. Is it all illegitimate even if the Justice does not directly rely upon it in the formal reasoning process? And, for that matter, what about the opinions of lower state or federal courts? None of them has a democratic provenance or authority from the perspective of the whole nation ("We the People"). (Certainly you wouldn't find very relevant Justices citing the MA. Supreme Court's decision in the Goodridge case in a constitutional challenge to the ban on gay marriage.) Should state and lower federal court decision never be used as persuasive authority or even for rhetorical purposes?

3. There's a great irony to this debate since it is a distant echo of a struggle in the 18th and 19th centuries by the Jeffersonian republicans and Jacksonian democrats against the imposition of foreign British common law in state courts. For the democrats, the only legitimate provenance for property, contract, tort law etc. were the state legislatures and popular majorities. All of the conservatives rallied around the British common law, which Scalia also championed yesterday. But why? We had a revolution against England and its form of government. Why would we use British sources to define "cruel and unusual punishment," for example, when it was the Crown's cruel and unusual punishments we were (partly) rebelling against? Our 8th amendment jurisprudence bans not just those practices considered uncivilized at the time the Bill of Rights was written but those that offend "evolving standards of decency," an idea that Scalia lambasted yesterday. But this progress in understanding is the mark of civilization and our struggle for dignity. There are a lot of nasty punishments we have done away with over the centuries. Should we really go back to the British view of these things? Where is the democratic authority or justification for that approach? More importantly, do you and Scalia take this deferential position towards British law not just with respect to constitutional interpretation but actual state common law? Isn't that a real slap in the face to the democratic revolution?

4. The only remark suggesting actual reliance on foreign legal views was made by Scalia himself who said that he favored "deference" to the treaty interpretations offered by other signatory nations, a deference he likened to Chevron administrative law agency deference. Now, what is the conceivable justification for that position? Certainly we should consult the cases other nations have decided interpreting our treaties but why should we defer to them? That was the only moment that I could feel American sovereignty actually slipping away. That remark suggested to me that this whole issue is being trumped up to push some hot political buttons: legal "elites--law students, law professors, lawyers, judges," in Scalia's refrain--borrowing fancy French and Euro-theory to push liberal agendas like gay rights and abolition of the death penalty. But is there a real consistency of approach here? did you agree with Scalia on the treaty point?

5. You raise the provocative question: if we're going to cite the European Court of Justice, why not Sharia law? If the European Court of Human Rights, why not the high court of North Korea? Ah, but here's the key point: we are an aspiring democratic society that should recognize especially the developing jurisprudence of other aspiring democratic societies. Granted, those who want to keep the Ten Commandments displayed on public property could and should cite to Sharia law to demonstrate parallel values and ideas in other parts of the world. That could only be illuminating as to the Establishment Clause views of the authors. But the point is that, why would we even think it remotely strange or damning that our judges would, in the course of interpreting our democratic constitution, cite to the jurisprudence of liberal democracies rather than military dictatorships or theocracies? This horror of mention of European courts relates more to current unease around the Iraq war rather than any honest accounting of our legal history, which is replete with such mentions.

6. Finally, just to be clear about my position: Perhaps judges and justices should never mention any outside material except those directly relevant to the logical unfolding of the Court's formal reasoning as to the precise issue in the case. If so, then I'm with you--ditch mention of foreign legal decisions except in those few doctrinal cases it is relevant (i.e. treaty interpretation). But, if not, then pretty much anything goes. If you guys are going to attack all acts of imaginative analogy by judges and their rhetorical or literary invocation of off-point sources, then please make clear you oppose judicial mention and reference of the Bible, Shakespeare, and even Scalia's beloved British sources (Blackstone) where there is no textual evidence that the Founders meant to rely on it.

Again, congratulations on a smashing event--eager to collect your reactions, Jamie

(Update, Saturday, January 15, 2005: The full written transcript of the debate is available here.)


Anonymous said...

The Scalia/Breyer debate was illuminating. Both have clarity. Scalia however did make a stronger case in that he spoke more authoritatively and cited historical events with ease. Yet Breyer, though more relaxed and minimal in breadth, did make for a strong case also, it just might require rehearing the debate (or reading the transcription) in order to recognize the substantive claims therein. There is one issue worth expounding upon: the meaning of “democratic provenance or authority”. A lot turns on that phrase. Stipulating a definition just might help resolve many of the aspects of the debate.


exguru said...

Scalia and Breyer made an excellent program. They should be encouraged to do it three times a year on different questions.

MD said...

Just some comments on the Professor's comments:

1. As for the first sentence of the Declaration of Independence, the phrase "a decent respect for the opinions of Mankind" refers to the rebels' sense that a revolution requires a reason, and that reason (or reasons) should be publicly declared. Is our Supreme Court in the business of declaring revolutions, or their rationales? In any case, within the sense of the Declaration, the Supreme Court does declare the reasons for its decisions; this would seem to satisfy the Declaration's requirement that it show a decent respect for the opinions of Mankind. Note that the "opinions of Mankind" in the Declaration are completely reactive; the writers of the Declaration did not consult the "opinions of Mankind" prior to its drafting.

I therefore see no relevance of this phrase to the issues of the debate.

2. As for citation of foreign court decisions, the professor asks if a prohibition also includes other materials. The professor gets a bit confused about these other materials, but one useful distinction is between the facts of our national existence and history (such as Renquist's poems) and legal precedent. I think most lawyers can distinguish between the two. A legal precedent is cited, not to make a rhetorical point or establish a factual complex, but to marshall precedent on an issue material in the case. The precedential value of a citation depends on a variety of considerations, with which the professor is familiar: the Court, the date, the history of the decision, the facts, and the similarity of issues presented. The Supreme Court typically relies on its own precedents, and beyond that a clear hierarchy prevails: US Court of Appeals, US District Courts, State Supreme Courts, etc., unless the nature of the issue requires an investigation of a particular State law.

One could read the Scalia/debate solely within these parameters: what is the precedential value, if any, of foreign court decisions? And, if they have any precedential value, why? If they don't have precedential value, why mention or cite them?

The professor is clearly correct that a Justice might cite a foreign court decision solely for rhetorical and sophistical purposes, just as he might cite other resources closer to home, such as the Bible, the Declaration of Independence (as the professor did in his first paragraph), declarations of legislators, law review articles, social science studies, crime statistics, or poetry.

The issue is whether a majority of the Court can, or should, in any circumstances in which it is not required by the issue in the case (such as a treaty case or some other international law case), cite foreign court decisions as either binding or guiding precedent. Is this legitimate?

3. Since there is no federal common law, the professor's protestations in his paragraph 3 are a bit inapposite. He's confusing two issues: the first is the individual States' incorporation of English common law into their jurisprudence (a decision made by the individual States); the second is the "originalist" philosophy of Scalia, and his insistence that the meaning of terms, concepts, and injunctions in the Constitution were derived from the meanings that such terms and concepts had at English law of the time.

As for the 8th Amendment, the federal government and the States are democratic insitutions, with elected legislatures, and they are quite capable of realizing the "democratic revolution" by observing the "evolving standards of decency" and enacting appropriate legislation. Beyond "cruel and unusual punishment," those "standards of decency" may vary from State to State (and they do), which are, after all, sovereign democratic powers.

4. As for paragraph 4, has the professor considered that treaties with foreign powers cede some sovereign power by agreement? So, his "feeling" of sovereign power slipping away is not unjustified.

As for "deference," is it unusual for Scalia (or any other judge) to wish to know what one party to an agreement thinks that it means? "Deference" is not "agreement."

5. The professor makes a good point in paragraph 5. The problem is assessing what is, and what is not, "an aspiring democratic society"? Is the EU "democratic"? Many would answer with a resounding "No." Is the ICC a "democratic institution"? Many would answer a resounding "No." And so on.

Old Fox said...

In dicta all things are possible.

Yes I agree with the comment that these two should repeat this thrice annually for the edificaton of the voting and thinking public, if for no other reason to show how intelligent people argue respectfully and never go ad hominem.

John said...

I am deeply amused by this, on one point.

British/English decisioning and commentaries (particularly those produced prior to 1776) are given a different status by Scalia for a good reason that everyone seems to miss.

That's the bedrock upon which American law and jurisprudence is built.

In that sense, common law precedents (and British decisions in a general sense) do quite rightly hold a privileged position.

I, personally, advocate a tiered system of status for foreign citations.

In the top rung are decisions of Common Law countries relating to general principles held in common; Cases ruling on basic stuff. These would generally be at least given a nod in virtually every case. Special respect should be given to pre-independence decisions. (Determining these countries is fairly easily done.)

Next, decisions of the same countries on novel issues for which we lack jurisprudence, or where theirs is more recent; By example I'll nod at British and Israeli decisions on terrorism and similar issues, for example. On the same level are decisions where commonality could be essential in the real world. These times, I would hope the Supremes grab their counterparts to try to reach a consensus, examples being border stuff between the US and Canada, like what the guys at the border can do.

Next, decisions of friendly courts of different systems with general similarities; Say, civil law or Code Napoleon. I would give less to these, almost none except on issues in common such as IL stuff.

Finally, there comes everybody else, like people who hate us and use Shari'a or Marxist legal theory. These people should only be used if the lawyer in question wants to be laughed at.