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.)