ABA International law section discussion of foreign law in constitutional interpretation

I was honored to take part on a panel today at the ABA international law section meeting here in DC at the Fairmont Hotel on the topic of foreign and international law in US constitutional interpretation. The panel had a lineup of heavy hitters - Robert Lutz, Darrell Prescott, Robert Stein, Patricia Wald, Vicki Jackson, and John Bellinger. I felt very privileged to take part.

This topic has received an astounding amount of attention over the last couple of years - I looked on Westlaw and there must be a couple of hundred articles dealing with it at least tangentially. It seems as though every American legal academic has weighed in, and one question is what more there could possibly be to say on the matter. I mean, it is clearly a semi permanent part of the culture wars - every SCt and appeals court candidate, I imagine, will be asked about it in confirmation hearings. One important question is why a matter that is in one sense so obscure still manages to capture our attention and, more importantly, our emotions. people engage passionately with the issue, and a useful question is why.

(And of course I don't exempt myself in this - my own offering, while short, is not short on passion [in Policy Review June-July 2005, on SSRN here]. And that brief, 8,000 word article, barely footnoted, has been downloaded 275 times on SSRN, which is astounding, frankly, for anything I write, and cited a bunch of times even though it is not available on Westlaw or Lexis.)

One reason that the issue engages the passions is that it is, in an inchoate way, a certain indicator of both intellectual positions - a proxy for liberal internationalism, on the one hand, or democratic sovereignty on the other. But what engages the passions about that is not precisely those political or intellectual positions, but instead what is implied about you as a person - cosmopolitan or provincial. Of course nothing is ever as clearcut as that - these identies are overlapping and swirling - I myself, for example, would call myself one of Josiah Royce's "higher provincials." But it signals a certain sense of basic commitment, whether that is in fact true of one or not.

Another reason why the passions are engaged over this issue is that it engages with certain fundamental fears. On the one hand, the fear of a judge - or anyone, really - that the electorate, the people, whomever - are saying, you can't read this, you can't think about that, a form of mindcontrol which seems to suggest that ignorance of importantly related things is bliss and indeed a form of the good. If I were a judge, I would find that both scary and outrageous - not to mention a little ridiculous: you are not allowed to think about how they would do it in the German constitutional court - whatever you do, don't think about the German constitutional court; whoops, I did it again ... On the other hand, the fear of democratic electorates that the judges to whom they have committed profound countermajoritarian powers, but with a certain implied commitment to provide reasoned decisions based out of agreed upon sources and materials, feel free to adopt and use whatever materials they like.

One striking feature about those quite profound fears, however, is that they are both real, both perfectly worthy fears - but are really about quite different things. They address palpable concerns, but they are about different things and are quite compatible with one another. I, for one, feel them both.

The current state of the academic debate might be characterized this way. First, there are three general responses to the use of foreign materials in constitutional adjudication (and John Bellinger was right in his remarks to emphasize that we are discussing, however much the passions are engaged, a very narrow part of what judges, even Supreme Court justices, do in their legal work). One is to say, it's a big deal - and it's bad - this is the Scalia position. It's also, for what it's worth, my position. Another is to say, it's not a big deal, and it's okay, because it has always gone on, has a long history, is not a radical departure from past practice, etc.- much of the academic work has been in this position, including, eg, Mark Tushnet's very fine writing on these issues, Vicki Jackson's work, and much of the directly historical work on the citation practices of the Court from Marshall onwards. A final one is to say, yes, it is a big deal - but it's good, not bad. This is the Ginsburg position in her new article.

In addition to these three "streams" or thematic responses, academic discussion of the question tends to fall into one or another of four levels of abstraction: (1) canons of interpretation of texts by judges or, really, anyone - an example would be the debate between the justices over whether the citation of foreign authority de-constrains judges in bad ways. (2) constitutional interpretation specifically, such as how foreign law fits into existing approaches to constitutional law - natural law, originalism, the living constitution, and pragmatism. (3) political theory - this is my own particular location in the debate, drawing freely from Charles Fried's writings here - the question of democratic legitimacy and the importance of the provenance and not merely the reasonableness of judicial authorities and citations. (4) social theory or sociology - the social characteristics sought or urged for what foreign law citation is sometimes - a la Anne Marie Slaughter - said to signify, the development of a transglobal, elite, cosmopolitan judicial culture of judges engaged in a common enterprise.

What I tried to note in my remarks at the ABA meeting was that very often people engage in one aspect or another of this debate, and do not recognize that they are debating with someone who is primarily engaged, passionately engaged, with another part of the complex set of issues that the whole foreign law debate puts on the table. This not infrequently leads to ships passing in the night. It was a very interesting discussion, and I'm delighted I was invited to take part.