What's the big deal about foreign law in US courts? Part 4

But the deeper issue is flatly one of legitimacy and how the legitimacy of a constitution and constitutional order is conceived – when the citation of the foreign case as persuasive or any other kind of authority is real and not merely a rhetorical flourish. That is the sum of what Justice Scalia means when, attacking such "transjudicialism" in the context of the US constitutional system, he said that we “must not forget that it is the Constitution for the United States that we are expounding,” and not, by implication, some other constitution or some set of universal principles not inherent in the text of the Constitution itself.[9]

Scalia has not closed himself off to the possibility that someone or some institution outside the United States might have something relevant to say about an American situation. Far from it. He recognizes, for example, that cross border litigation by multinational entities will involve complex issues of comity and recognition of the views of foreign courts, as might the interpretation of treaties and other international documents that result from a multilateral process among sovereigns. It is, rather, that “comparative analysis [is] inappropriate to the task of interpreting a constitution, though it [is] of course quite appropriate to the task of writing one.”[10] Constitutions are different, insofar as they are the constitutive document of a political community.[11]

In that case, the issue is not so much the content of doctrine, but instead its provenance – the fact that it comes out of the processes of a particular political community, its constitutional and constitutive processes, is what matters, not its content. And, therefore, the fact that other communities might have different and better ways of approaching even the same issue is frankly not relevant, except as those different ways of doing things are able to ascend through the internal constitutional processes of a political community.

This matter of legitimacy and provenance is addressed in an article by Charles Fried, who brings to this debate not only the credentials of Harvard constitutional law professor but also former judge on the Massachusetts high court. Fried writes in reference to the debate between Justice Breyer and Justice Scalia:

“Justice Breyer’s remarks on comparative constitutional law, if they had appeared in a law review article, would have been quite unremarkable … As part of a judicial opinion, they were altogether remarkable. Why should that be? The reason is that if Justice Breyer’s insertion into the case of comparative constitutional law materials had gone unchallenged, it would have been a step towards legitimizing their use as points of departure in constitutional argumentation.”[12]

The moral heart of the debate is thus how one sees constitutionalism and the United States Constitution in particular. In many political systems, the constitution is a higher law, but not that much higher – the constitution is a document which is relatively easily amended, highly programmatic in its structure, and of neither the longevity nor legitimacy which the Constitution of the United States carries. It is thus easily comprehensible how, in such a system, legitimacy is not deeply offended by the importation of legal materials from outside the system. No deep social or political consensus is deeply offended; neither is democratic sensibility undermined. In fact, quite the opposite, as Yale Law School professor Jed Rubenfeld observes:

“For Europeans, the fundamental point of international law was to address the catastrophic problem of nationalism – to check national sovereignty, emphatically including national popular sovereignty. This remains the dominant European view today. The United Nations, the emerging European Union, and international law in general are expressly understood in Europe as … restraints on democracy, at least in the sense that they place increasing power in the hands of international actors (bureaucrats, technocrats, diplomats, and judges) at a considerable remove from popular politics and popular will.”[13]

Rubenfeld goes on to note that the US Constitution did “not speak in the language of universal rights.”[14] Instead, it“spoke in the language of popular sovereignty … American constitutional law was understood from the outset to be part of the project of popular self-government, as opposed to an external force checking that project. The American language of constitutional rights, properly understood, does not claim the authority of universal law. It claims, rather, the authority of democracy.”[15]

The US Constitution, on this view - and I daresay it is the view held by a sizable majority in in this country; it is their understanding of their Constitution - derives its legitimacy from popular sovereignty. It derives its legitimacy from the people who are governed thereby, and not because it is thought of as the enactment of some body of universal law given to them – much less given to them by elites who obtained it from on high and can therefore modify it as they receive further revelation.[16] If that be so – again, it seems to me certainly the ordinary understanding of Americans, even including most of our elites – then the invocation of foreign constitutional law, no matter how persuasive its content to a particular judge, is fundamentally at odds with democratic constitutional self government. The citizens of the United States have accepted democratic constitutional arrangements, particularly in the judicial rule of law, that are in many ways deeply counter-majoritarian, but they have done so on the basis of an argument from popular sovereignty. The formal acceptance of constitutional legal materials from outside that system is, to say the least, inconsistent with the traditional understanding of the compact between the governed and the government.

Yes, of course, such measures could gradually be introduced by judges whose constitutional philosophy is something other than democratic self-government; if Justice Breyer and four other justices were to do so over time, revolt would not ensue. But it would not be consistent with the legitimacy and democratic constitutionalism as the United States has understood it. And if the justices and the Federal courts generally were to move along that road in decisional ways, then it would seem to me quite appropriate, in response to that radical and undemocratic change in the US constitutional system, for the Congress to take the equally radical but entirely democratic step of stripping the Federal courts of certain matters by which to preserve the balance of democratic governance which the courts would have misguidedly and highhandedly disturbed.[17]

(Update: Go to notes, post 5, here.)