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.

Roger Alford at Opinio Juris on lower court use of foreign law

Roger Alford at Opinio Juris makes an important point that most of us, me included, haven't really focused on in the debate over the use of foreign law in US courts - its use by lower courts and state courts. He notes that the Missouri Supreme Court appealed to foreign law in its opinion in Roper v Simmons, flagrantly ignoring then-controlling US Supreme Court precedent. I've noted in earlier posts that foreign law, unless checked by a newly constituted Supreme Court (and the fact that Roberts and Alito are both opposed does not really change the situation all that much, given that Kennedy, Stevens, Breyer, Souter, and Ginsburg are all on board), will become much more a feature in the lower courts than we now realize, through the press of litigation. But Roger Alford's post notes that it is already present more than I, at least, had really thought about. Here.

Alito comes out against foreign law in US constitutional adjudication

Here is one of several posts at Opinio Juris on Judge Alito's rejection of the US of foreign law in US constitutional adjudication. (I've written a lot on the subject on this blog, scroll down, especially around January 2005 when Justices Scalia and Breyer spoke on the subject at my law school. Also, my Policy Review article on the subject, here.)

Mary Ann Glendon on foreign law in US courts

Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, is, among many other things, one of the leading comparative law scholars in the United States. (And friend and mentor to me, I add with pleasure.) I was therefore especially interested in seeing her views on a question much considered on this blog, the place, if any, of foreign law in US constitutional adjudication. The occasion for Professor Glendon's was the question Senator Kyl put to Judge Roberts on whether such citation was appropriate; as noted in an earlier post, Judge Roberts said no, for reasons of democratic theory and constraint of the judiciary. The venue was the opinion page of the WSJ, on Friday, September 16, 2005, "Judicial Tourism: What's wrong with the U.S. Supreme Court citing foreign law?" Read it here.

Judge Roberts' view coincides with my own. Professor Glendon has taken a more nuanced, slightly more middle view - title of the article notwithstanding. She firmly rejects the use of foreign law simply to endorse one's judicial predilections, for all the reasons noted by Justice Scalia and many others. Yet at the same time, she observes that even such a conservative as Chief Justice Rehnquist cited foreign law. "Contrast the responsible use," Professor Glendon says, "made of foreign law by Chief Justice William Rehnquist in Washington v. Glucksberg, to support Washington state's legislative prohibition of assisted suicide in an opinion noting that in "almost every state--indeed, in almost every western democracy--it is a crime to assist a suicide."

That is, Professor Glendon draws an important distinction between using foreign law to support the judgment made by a legislature in America, and foriegn law used to supplant and reject it. Comparativism, she says, can be an important element of buttressing what democratic majorities have endorsed, but it is quite a different story to use foreign law - and, she adds, social science - to strike it down, which is what the Court did in Roper v Simmons. I myself am not prepared to go that far - because I believe the element of democratic sovereignty should be more powerful than that, even to preclude using it in support of legislative propositions - the legislature might want to discuss and learn from and evaluate foreign law and cases, but that is different from the courts so doing. Nonetheless, this is a very subtle, graceful point from someone I wholeheartedly admire.

Excerpts:
***

Judicial Tourism:
What's wrong with the U.S. Supreme Court citing foreign law.

BY MARY ANN GLENDON
Friday, September 16, 2005 12:01 a.m.
Wall Street Journal

References to foreign law in Supreme Court opinions have become controversial. Nevertheless, it was startling when Sen. Tom Coburn suggested in the Roberts confirmation hearings that justices who cite foreign authority might deserve impeachment. At first glance, it is hard to see why these side-glances at what other countries do have provoked such alarm. True, the references have increased somewhat, but they remain rare, and no one suggests that the court has directly based any of its interpretations of the Constitution on foreign authority.

As the issue was framed recently in a debate between Justices Stephen Breyer and Antonin Scalia, it comes down to this: The former says that if a judge abroad has dealt with a similar problem, "Why don't I read what he says if it's similar enough? Maybe I'll learn something." Yet the latter would exclude such material as wholly without bearing on the meaning of the Constitution; and quite apart from originalism, the different political, constitutional, procedural and cultural contexts in other nations drastically limit its relevance. Justice Breyer counters that the experience of others "may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem."

The Breyer view may sound sweetly reasonable; but when one looks at the cases where foreign law has figured prominently, it is evident that the practice is more problematic than proponents have let on. Earlier this year, in Roper v. Simmons, a 5-4 majority struck down the death penalty as it applied to persons over 15 and under 18. Justice Anthony Kennedy stated for the court that "the overwhelming weight of international opinion [is] against the juvenile death penalty," and that "the opinion of the world community, while "not controlling our outcome, does provide respected and significant confirmation for our own conclusions." In its effort to delegitimate state laws in question, the Roper majority, including Justice Breyer, not only reached out to "international opinion," but selectively cited various social science materials.

There is, of course, no such thing as a "world community." As Eleanor Roosevelt and her fellow drafters of the Universal Declaration of Human Rights well understood, universal rights are premised on the acceptance of a legitimate pluralism in forms of freedom. Human rights become real only when brought to life in concrete cultural settings. In our system, rights are protected not only by courts, but by the structure of our government--designed to give us citizens a say in the kind of society we wish to bring into being, limited only by constitutional text and tradition. But neither our design for government nor our model of judicial review has been widely copied. "International opinion" usually means the opinions of likeminded judges, academics and journalists who wish to use the courts to impose their vision of the good society.

In Roper, the absence of an American consensus on the death penalty prompted Justice Sandra Day O'Connor to dissent. Though not averse to consulting foreign law, she could "assign no such confirmatory role to the international consensus described by the Court." The majority had simply substituted its own "independent moral judgment" for the judgments of many state legislatures that juries are capable of determining whether the youth of a murderer should be taken into account in the penalty phase.

The problem is not reference to foreign law: It is how foreign law is used by judges who usurp powers reserved under the Constitution to the people and their elected representatives, and whose desire to "learn" is limited to finding arguments in support of conclusions that have little constitutional warrant. The learning process of the foreign law enthusiasts, moreover, is selective. They have shown no disposition to explore why most democracies take a different view from theirs on exclusion of illegally obtained evidence, regulation of abortion or separation of church and state. With reason, Justice Scalia accuses them of "looking over the heads of the crowd and picking out their friends."

What has been overlooked in these debates is the crucial difference between the legitimate use of foreign material as mere empirical evidence that legislation has a rational basis, and its use to buttress the court's own decision to override legislation. Take Lawrence v. Texas, the decision striking down criminal penalties for homosexual sodomy, where Justice Kennedy, joined by Justice Breyer, wrote, "The right petitioners seek . . . has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent." The remarkable implication is that it is up to our legislatures to justify a different view of human rights from that accepted elsewhere. This gives short shrift to the fundamental right of Americans to have a say in setting the conditions under which they live--the right that is at the very heart of our unique democratic experiment. Contrast the responsible use made of foreign law by Chief Justice William Rehnquist in Washington v. Glucksberg, to support Washington state's legislative prohibition of assisted suicide in an opinion noting that in "almost every state--indeed, in almost every western democracy--it is a crime to assist a suicide."

The importance of the distinction between these two modes of use cannot be exaggerated. It is not only a question of respecting the separation of powers. Those who believe the Washington legislature got it wrong can work to change the law through the ordinary democratic processes of persuasion and voting. But in the U.S., unlike in countries whose constitutions are easier to amend, the court's constitutional mistakes are exceedingly hard to correct. The unhealthy ripple effects of judicial adventurism are many: Legislatures are encouraged to punt controversial issues into the courts; political energy, lacking more constructive outlets, flows into litigation and the judicial selection process.

Few judges have understood the distinction between legitimate and problematic uses of secondary authorities so well as the late Henry Friendly, one of the most respected judges never to sit on the Supreme Court. In the 1970s, when judicial citation of social science materials was being hotly debated, Judge Friendly defended their use, but cautioned that when judges use social science or foreign material to substitute their own judgment for that of the legislature, their legitimacy is at its lowest ebb. For all who hope the next Supreme Court justice will possess interpretive skill and respect toward authoritative sources of law, it is an encouraging sign that John Roberts received his first lessons in judging as law clerk to Henry Friendly.

(Ms. Glendon is Learned Hand Professor of Law at Harvard Law School.)

Judge Roberts on use of foreign law in US courts

Somewhat to my surprise, Judge Roberts did get asked today about the use of foreign law in US court cases, particularly constitutional cases. He gave a more expansive answer than I expected, and it was one that certainly I agree with. I was struck by Roberts' putting both the "unfettered discretion" objection to foreign law as well as the "democratic theory" objection on the table, and indeed beginning with what I think is the weightier objection, democratic legitimacy. This was not something that Justice Scalia offered as an objection in the Scalia Breyer debate here at my law school. However, given that Roberts would replace Rehnquist, there would still be six members of the Court who would permit foreign law citation (only Scalia, Thomas, and Rehnquist were clearly opposed). Here is the exchange, via Opinio Juris (thanks Peggy) and SCOTUSblog:

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KYL: It's an American Constitution, not a European or an African or an Asian one. And its meaning, it seems to me, by definition, cannot be determined by reference to foreign law. I also think it would put us on a dangerous path by trying to pick and choose among those foreign laws that we liked or didn't like. For example, many nations have a weak protection for freedom to participate in or practice one's religion. Iran and some other Middle Eastern nations come immediately to mind. But even a modern Western nation like France has placed restrictions on religious symbols in the public square. That would be highly unlikely to pass muster in U.S. courts. Should we look to France to tell us what the free exercise clause means, for example? Even nations that share our common law tradition such as Great Britain offer fewer civil liberty guarantees than we do. And the press has far less freedom. Nations such as Canada have allowed their judges to craft a constitutional right to homosexual marriage. There's a lot more to say on the subject. But I wanted to hear from you. So my question is this: What, if anything, is the proper role of foreign law in U.S. Supreme Court decisions? And, of course, we're not talking about interpreting treaties or foreign contracts of that sort, but cases such as those that would involve interpretations of the U.S. Constitution.

ROBERTS: Well, I don't want to comment on any particular case but I think I can speak more generally about the approach. I know Justices Scalia and Breyer had a little debate about it themselves here in town that was very illuminating to get both of their views. And I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn't about interpreting treaties or foreign contracts but as precedent on the meaning of American law. The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate. The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory.

ROBERTS: If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.

Supreme Court nominees and foreign law in US constitutional adjudication

I've made this point repeatedly on this blog, but with the passing last night of Chief Justice Rehnquist, and the opening of the hearings on John Roberts' nomination, the question of how nominees view the role, if any, of foreign law in US constitutional adjudication takes on ever greater importance. It also has certain virtues as a line of inquiry, in that unlike many of the direct "values" questions, it can plausibly be put as a matter of judicial philosophy, a question of what kinds of sources are appropriate for a US judge in interpreting the constitution. It does not need to be asked, or answered, as a question about particular cases. I have strongly articulated views against the practice of taking foreign law into consideration - see my Policy Review essay, here - but in any case, I think it is a crucial question of the jurisprudence of nominees.

(Update, Wednesday, September 7, 2005: Here is Jeffrey Toobin's take on Justice Kennedy's passion for foreign law, from the New Yorker, here, issue of September 12, 2005. Toobin is an "echo-chamber" journalist - he can't imagine that he might ever have to address the sensibilities of anyone other than the idealized New Yorker reader, and so it never occurs to have to ask Justice Kennedy anything other than fawning questions and or to start from any other assumption except that this foreign law passion is a good globally-progressive thing. Why should Toobin bother, and why should it occur to him at all, since these are the implicit starting points of both Toobin and his readership? Skepticism about something so self-evidently progressive and good? You have to be kidding.)

Views on foreign law in US constitutional law - questions for Supreme Court nominees

One lurking question in the Supreme Court appointment fight is where any of the possible candidates stand on the question of foreign (and unratified international) law in US constitutional adjudication. As numerous previous posts on this blog have argued, it is an absolutely essential question of judicial philosophy, and one in which the President has a chance to change the Court's direction, given that Justice O'Connor has been a strong proponent of the trend. Yet I have read nothing that gives any indication of where possible nominees stand on this vital matter.

(Dis)respecting the opinions of mankind ...

Eugene Kontorovich, of George Mason law school and visiting at University of Chicago law school, has a fascinating short article in Green Bag on the origins and meaning of the famous phrase, now cliche, "a decent respect to the opinions of mankind," in the opening paragraph of the Declaration of Independence. The short version? That phrase does not mean what Justice Breyer seems to think it means. Read it on SSRN, here.

(I wish I had seen this article while I was writing my own article on foreign law in US constitutional adjudication for Policy Review, which I have talked about in earlier posts.)

(Update, June 18, 2005: Opinio Juris has an excellent discussion with Peggy McGuinness, Roger Alford, and Eugene Kontorovich on the Kontorovich article. Here is the link directly to Kontorovich's response to McGuinness; scroll back to get the beginning of the thread.)

Relentless self-promotion! "Foreign law and the US constitution" ... my new article in Policy Review

Tacky self-promotion, I'm afraid - the blog as advertising marquee. I am nonetheless very pleased to announce my article, Foreign Law and the US Constitution, in the June-July 2005 issue of Policy Review, No. 131.

The article criticizes the US Supreme Court's Roper v. Simmons majority opinion, by Justice Anthony Kennedy, using foreign and unratified international law materials - comparative constitutional materials - to reach its decision. It also sharply criticizes Justice Stephen Breyer for endorsing the use of such materials from the standpoint of "pragmatist globalism" as a judicial philosophy. It ends by asking the question of whether the Supreme Court is really interested in remaining, in a democratically sovereign sense, "our court," or instead whether it has decided that the really cool thing to do is to leave behind that kind of mere parochialism and become a kind of global court, a court to the world:

***
"More abstractly, this foreign legal material is absorbed into the judging process as pure text, free of the “embeddedness” within our judicial system that has created, in an organic, informal way, means and mechanisms to order and sort the myriad authorities available for citation by judges. And, just as important, it comes to our judicial system free of the parallel “embeddedness” of the foreign judicial system from which it came. The effect is to deracinate the judicial texts of other legal systems, to strip them out of the particular social settings that animate them for our own parochial purposes even as we grandly declare them to be “global” and “universal” purposes.

In so doing, however, we dishonor them — because we do not think their particularity, their “embeddedness,” matters, while we certainly think ours does. We act like the dilettante religious seeker, borrowing a little bit from this religion and a little from that, a piece of pantheism here, nature worship there, Jesus hither, the Buddha thence, and then call the shallow mish-mash “global” and “universal” religion.

We all know, in other words, within our informal ordering of authority, the difference between citing a Supreme Court case and a quotation from Bartlett’s — but as between, for example, the German constitutional court and the high court of India? To go by the justices’ citations, one wonders whether it is anything more than just whom they happened to meet over the years at international judicial conferences or, perhaps, the foreign languages they happen to read and speak. It is not irrelevant that Justice Breyer once cited the high court of Zimbabwe, apparently in order to give it more prestige, through association with the U.S. Supreme Court, in its own beleaguered political circumstances. Yet in the American University colloquium, he allowed that this was a mistake — presumably on the basis of finding out more about the facts of the regime and perhaps reflecting that, after all, a high court is still the high court of a state, in this case the vicious Mugabe dictatorship, even if that court seeks, within its practical bounds, to act well.

The point is that a judge can use any of this material how he or she will. Which is why Judge Posner, who even within a consequentialist ethic understands the need for constraint, has expressed grave concern at the invitation to judges to “troll deeply . . . in the world’s corpus juris” to reach a politically preferred outcome."

***
"In the American tradition, the Constitution owes its legitimacy to the political community which enacted and sustains it, and not to anything exterior to it. Those who interpret its constitutional text owe their allegiance to that democratic, self-governing community. The inevitable result is that if there is a conflict between fidelity to the inside political community and the desires of outsiders — as there always will be — judges cannot satisfy the desires of outsiders, no matter how committed the judges also are to the undeniable virtues, in their place, of cosmopolitanism, urbanity, comity, globalism, universalism, and so on. Justice Kennedy sought, in Roper, to create a formulation in which that essential contradiction goes away by a little magic incantation, pretending that what fidelity to this political community requires of its constitutional interpreters and what outsiders desire of them will never be in irremediable conflict.

The problem with comparative constitutionalism for democratic constitutional self-government, then, is the provenance of materials used in constitutional interpretation. Provenance matters in constitutional interpretation, at least if democracy and self-government are important, because though the content of the material may be, so to speak, intelligent or unintelligent, sensible or stupid, prudent or imprudent, it is frankly secondary to the fact that it gives, even indirectly, the consent of the governed to its use and hence to the binding conclusions derived. Constitutional interpretation is not merely a matter of “best policy,” considered in a vacuum, but “best policy” as it has arisen through democratic processes — which may or may not have been successful in reaching the best policy. Without fidelity to the principle of democratic, self-governing provenance over substantive content in the utilization of constitutional adjudicatory materials, a court becomes merely a purveyor of its own view of best policy. Yet this is not solely an issue of an unconstrained Court. It is, more importantly, a violation of the compact between government and governed, free people who choose to give up a measure of their liberties in return for the benefits of government — a particular pact with a particular community, in which the materials used in the countermajoritarian act of judging them nonetheless have, in some fashion, even indirectly, democratic provenance and consent. In this respect, citing a foreign court will always be different from citing Shakespeare, and it does not help to say, well, it is not binding precedent. It is the source that is the problem.

None of this is confined, of course, solely to Supreme Court cases. On the contrary, there are good reasons to believe that, given the open invitation of Roper, the practice will rapidly spread throughout the federal courts. Why shouldn’t it? The use of these materials, Roper assures us, is after all a way of affirming fidelity to our constitutional traditions. The practice will now spread like an internet virus across the legal system, under pressure from both plaintiffs and defendants, liberals and conservatives, activists and those answering activists. Once one side has deployed them in litigation, the other side will have to respond to them and, crucially, find something to counterbalance them from the same corpus juris of foreign and international materials.

It will no longer do to say, in other words, you have cited a foreign case, but I have cited a U.S. domestic case, and that is self-evidently better authority. All that shows, should the judge be so inclined, is evidence of American parochialism. Roper tells U.S. judges, in effect, that they should strive not to be the Ugly Judicial American."

***
"There is a second fundamental way to approach Roper, however. This is not as a matter of justification — not as a matter of judicial, legal, or political theory — but instead as sociology, empirical sociology and social theory. What, in other words, is the causal account of how six members of the Supreme Court came to embrace the use of these materials, and what does that account say about the Court, its values, allegiances, and self-conception for the rest of society and, indeed, the rest of the world? Will it continue to think of itself as “our” Court? Or will it see itself instead as a court for the world?

This essay, like the rest of the commentary on comparative constitutionalism, has touched upon the sociology only in passing — only indirectly, in references to judges as part of a new global elite. Yet in the long run, sociology and social theory might turn out to be more significant than legal or political theory to an understanding of the Roper doctrine’s origins in the Supreme Court, what the doctrine means for the Court’s conception of its own place in the world — and what, in turn, the Court’s new globalized sense of itself might mean for the democratic political community of the United States."

Doesn't Justice Kennedy's language in Roper carefully limit use of foreign and international materials?

Arthur of Ad Populum makes an important comment to my post yesterday regarding what I see as the baleful effects of the Supreme Court's use of foreign and international legal materials in deciding the juvenile death penalty case, Roper v. Simmons (and see his further comments on the Powerline discussion and others at Ad Populum). Arthur writes:

"Ken: I'm confused. I've seen similar critiques in a bunch of places, but they seem to me simply anti-textual:

This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. (Kennedy, J., writing for the majority, at 21).

That's Kennedy, before discussing foreign law, making clear that the references to foreign law are not by any means dispositive in the case. Why doesn't that ameliorate your concerns?"

***
It's a fair question. The problem, I think, is that although the majority says that it is not controlling, the problem of these materials in US Constitutional adjudication is problematic long before it becomes an issue of being "controlling" legal authority. The problem, as Justice Scalia put it at the Scalia-Breyer debate on this issue at American University in January (you can find a link to the transcript at the Washington College of Law homepage, here), in the first place is not whether it is controlling legal authority. It is that by allowing in a body of material that can be used to justify a judge's decision as "persuasive" or the "reality" or the "consensus" of things as amorphous as the opinion of the "international community," it opens up large new ways in which a judge can simply decide according to his or her subjective predilections. This was Justice Scalia's point - you can find anything you like to justify anything out there in the broad world, and it does not have to be controlling authority, controlling precedent in any strict sense, to give you license to do what you would like to do. Yes, it might be harder if you are a lower court judge (and easier, if you are a Supreme Court judge) to avoid higher US court precedents. But of course many, many cases can be plausibly distinguished from the precedents, and the introduction of these legal materials - their introduction as politically and legally legitimate materials - opens new avenues for reaching conclusions that might not have been so easily justified absent their use. I don't think it's an answer, if one accepts that their use and effects will be more diffuse and subtle, to say that, well, at the end of the day they are not controlling precedential authority. So many cases are decided (and necessarily decided) on the basis of materials that are well short of that standard because facts differ from case to case.

This is essentially Scalia's argument in the American University debate. There is a different kind of argument against these materials, based on fundamental notions of fidelity to the sovereignty of the people who have entered into a particular constitutional arrangement a formed, in Lincoln's phrase, a "political community, without a political superior," fidelity to the ideal of democratic self-government. Scalia comes closer to that argument in parts of his dissent in Roper; fundamentally that argument is a political one with legal effects rather than a narrowly legal one, and it is one that I will take up more extensively in my Policy Review essay. Whereas his argument from what we might call "authorizing subjectivity" in the American University debate is one about legal rhetoric and the role of a judge - an argument about legal justification and legal language more narrowly. It was striking that he declined (perhaps because the hour was late) to take up the broader sovereignty and democratic legitimacy argument when posed as the final question from the audience in the American University debate.

Let me add, too, that Justice Kennedy's language that it "remains our responsibility" sounds much like an echo from Anne-Marie Slaughter's vision in her book A New World Order that judges in national courts around the world should develop a kind of dual role in both interpreting their national constitutional order while simultaneously drawing it into a kind of globalized, "transjudicial" order, a globalized jurisprudence. She argues that such a system is not really a set of dual allegiances, however much it sounds like exactly that, but instead protects the core of sovereignty because, after all, however much something like the death penalty or America's "outlier" (her term) protections of free speech is criticized by foreign opinion and legal materials, and however much US judges must take those views into account by at least recognizing them and responding to them, at the end of the day it is an American judge's responsibility to interpret the American Constitution.

As I argue in my Harvard Law Review review of Slaughter's book, here, however, that strikes me as implausible in the extreme. And it seems to me that Justice Kennedy is echoing exactly that sort of dual allegiance, dual function, transjudicialism line here. At the end of the day, those professing dual allegiances in things that really matter face hard choices, and they must finally tip in one direction or another. As Lincoln well knew, the United States is either a political community without a political superior, or it is not.

(Arthur, thanks for the comment - it is an important one, and I'm sure you have more to say about it.)

(Update: see Julian Ku's post at Opinio Juris.)

(Update: All my worst fears realized! Heh. Thanks Instapundit.)

Foreign law and international opinion in the US juvenile death penalty case

If you have read my earlier posts on the Scalia-Breyer debate over foreign law in US courts, here, you will have guessed that I am neither surprised nor pleased at the US Supreme Court decision, issued yesterday, in Roper v. Simmons, striking down the death penalty for those who committed their crimes as juveniles.

(I am in fact opposed to the death penalty in domestic criminal actions, but think this is not something for the courts to legislate - the Court's reference to a "consensus" on the juvenile death penalty issue can only be, I think, some kind of very arch joke - I do accept the death penalty in such matters as war crimes, crimes against humanity, and genocide, but let me leave aside all the complicated discussion about the death penalty itself.)

The majority opinion, written by Justice Kennedy, went wildly farther than any other case in invoking international opinion, foreign law, and international law, and I find that very disturbing. It is particularly disturbing in that this is no longer merely a hobby-horse of Justice Breyer's, but something joined by Justices Kennedy and, remarkably, by Justice O'Connor, who dissented from the holding on the death penalty but specifically joined the majority in its reliance on international opinion.

Press coverage has been focused on this practice as though it will remain limited to Supreme Court cases. It will not. The language of the majority approving the practice of paying attention to foreign and international sources is more than broad enough to constitute an invitation to litigants in matters ranging from run of the mill statutory cases to the most profound Constitutional "values" cases - abortion, the death penalty, firearms, church and state issues, and free speech. Both ordinary lawyers and the whole human rights NGO community will now gear up to introduce all these materials into all levels of court cases in this country, with the blessing of the Supreme Court. The other side will have no choice but to respond in kind, seeking vindication of its own side in the same foreign and international materials. Judges will rapidly become used to the idea that this material is as good as any other.

I would predict that, unchecked by an explicit rejection of this material by the Supreme Court itself, the use of this material will spread throughout the US judicial system like an internet virus - because both sides will have to assume in any litigation that it now matters. Corporate defendants will have to search through all this material to find material for their own side; conservative legal groups will have to be able to come up with their own citations from this material, because they will have no surety that such material will not persuade the judge. Certainly numerous activist judges will find it a potent source of material for reaching their own subjective conclusions - just as Justice Scalia predicted and as the Supreme Court just did. But that won't be the worst of it. The worst of it will be the speed with which these materials and their invocation become utterly routine, far outside cases of judicial activism, with the strong possibility of a sea change in the nature of legal authority in this country. Indeed, I think the shift will at least begin to become widely noticeable up and down the court system - and essentially unstoppable - even by the end of Bush's second term.

There is really only one solution to a problem invited from the top, and that lies with a shift in the balance of power in the Court. I would say that attitudes toward foreign law and international legal materials in US constitutional adjudication has now risen to be at the very top of questions for prospective court nominees, and not just Supreme Court nominees. It is also time for Congress to take up specific measures to ensure that Article III courts are limited to US legal materials in Constitutional adjudication. This is the kind of long term, fuzzy, domestic issue that the Bush administration has shown itself frankly unable to focus on - too abstract, too long term, too indirect in its bad effects, and beyond the political event horizon - but it needs to understand the extraordinary nature of the end-run around US law that the Supreme Court has handed activists and NGOs, by handing it to everyone. It is actually a much more important long term issue than tort reform - yet it seems to me highly unlikely that the Bush administration will understand that the Supreme Court has essentially tossed down the gauntlet and that it must act, with Congress, now if it hopes to avoid, twenty five years from now, the conclusion that a sweeping invigoration of the legal materials underlying judicial activism of the Left took place on its watch.

(I will say more about all this is in an article later this year in the Hoover Institution's Policy Review. I also discuss the issue in my review of Anne-Marie Slaughter's book in the Harvard Law Review, here, at pp. 1286-1291, and 1304-1310. But it is important to understand that the Roper doctrine, with the support of the majority plus Justice O'Connor, goes far beyond anything I had contemplated in my earlier writings. I should add that the best MSM article on this issue - indeed, the best reporting on the Supreme Court - comes from Charles Lane of the Washington Post.)

Interpreting the Scalia-Breyer debate

The transcript of the Scalia-Breyer discussion on the role of foreign law in US courts deserves careful study, and I am sure it will prove to be an enduring document for scholars, in no small part because each Justice used the occasion to go beyond the narrow question of foreign law to make a statement about his respective philosophy of judging. In Justice Scalia's case, of course, that was a restatement of his familiar views on originalism.

Justice Breyer's remarks on his philosophy of judging, however, were especially important. He reinforced the view, I think it fair to say, that his philosophy of judging is characterized by not differentiating between the Constitution and other legal texts that a judge must use in order judge. He emphasized this when he spoke about the day to day work of judges, reading briefs and, as he joked, "doing homework." For most judges - for reasons that are a matter of a philosophy of judging arising from a political philosophy that privileges the Constitution as the constitutive text binding together a political community - the Constitution and its interpretation are different from any other kind of text. The difference is in kind and not merely degree. It cuts across political views and temperments - liberal as well as conservative judges, political liberals, political conservatives, judicial liberals, judicial conservatives - see the Constitution as different in kind from other texts with which a judge must grapple.

Justice Breyer, by contrast, suggested otherwise for his philosophy of judging. The Constitution is a sacred text in our political culture, yes, and worthy of our highest respect, and so on - but in terms of its interpretation in the process of judging, it is not different from other texts. Moreover, it is mediated in reaching a judge by the process of litigation itself - lawyers' briefs, lower court rulings, etc., all intermediate the Constitution in the process of what a court does. It does not lower the status of the Constitution nor does it underestimate it - but Justice Breyer says, in effect, we must recognize that the Constitution in a particular case, about a particular subject matter, in a particular litigation, comes to the judge already highly interpreted, packaged, mediated - and indeed only particular bits of the Constitution. And it is dealt with as other legal materials offered by litigants - something that the judge takes in through the process of judging.

I've sometimes seen it remarked that Justice Breyer does not really have a theory of the Constitution as such - he treats it in the same way that he treats other legal materials, on the theory that he laid out in his rightly famous scholarly work, Regulation. Justice Breyer's theory of the interpretation of regulation and ordinary statutes works, for him, quite well for the Constitution. One can see how originalism holds little attraction for him - but equally, the transcendental view of the Constitution, of a Justice Brandeis, for example, holds little attraction for him.

But this view of judging and the Constitution does have a bearing, I would suggest, on his view of foreign law. It is a view of constitutions that is extremely congenial to the legal status and stature of most constitutions in most legal systems. They are constitutive documents in one sense, and higher law, but not much higher. Easily amended, highly programmatic - they are not seen in the way that the Constitution is typically seen in America - the compact which established the political community, with all the sacred and transcendental overtones accompanying the forging of a political community. Justice Breyer's view of constitutionalism is much closer, it seems to me, to the view of constitutions that do not have the transcendental overtones, the foundational mythology, the sacred text that the US Constitution has. It means that it is far easier for him to import legal materials from outside the hierarchy of US law culminating in the Constitution itself, even in interpreting the Constitution, because for Justice Breyer, the Constitution more like a constitution. It is not a transcendental, sacred document the nature of which serves to exclude materials that do not arise from within the political community whose boundaries it sets, and exists to set.

***
That said ... in studying the Scalia-Breyer transcript, I am struck by how remarkably substantive it is. It is hard, reading the document, to believe that these two Justice were speaking extempore, off the cuff, in conversation and wholly unscripted. But they were. And because they were, it is important that the individual words and phrases used not carry more weight than can be put on off the cuff and unscripted phrasing. It is not a document for which it is fair to go after "gotcha" phrases and sentences. This is not the Federal Reserve, issuing delphic statements, the placement of each comma of which is fully intended to carry weight. This is an informal discussion, in which, if one is willing to read it charitably to each party, yields a great deal about judicial philosophy. But it must be read holistically, in the context of an informal discussion and, above all, charitably.

(Update, Friday, January 21, 2005. Julian Ku at Opinio Juris blog has a very interesting comment on the same question, here. Opinio Juris (in my links list) is a wonderful blog, btw.)

Full written transcript of Scalia-Breyer debate on foreign law

The full written transcript of the debate between Justices Scalia and Breyer on foreign law in US courts is available here.

My thanks and congratulations to the law school for getting it transcribed and available so quickly on the web. I recommend, by the way, not neglecting Justice Breyer's very interesting, indeed moving, closing statement, at the very end of the transcript:

MR. ANDERSON: Last question that we're going to take is actually from outside this room. There are many people who are actually in other rooms in the building, and I've taken one question out of the ones that have been passed up here. So this will be the last question. And it is that Justice Scalia has raised the concern, and has really put centrally, the concern that citing foreign law is an invitation to judicial elites to impose their own moral and social views.

MORE And yet neither Justice Scalia nor Justice Breyer has directly addressed a deeper concern about these materials; namely, that's it's not about elite imposition as such, but instead that these legal materials have no democratic provenance, they have no democratic connection to this legal system, to this constitutional system, and thus lack democratic accountability as legal materials. Let me put that out as a question, I guess. (Pause.) (Laughter.)

JUSTICE SCALIA: They're your materials; you defend them. (Laughter.)

JUSTICE BREYER: I mean, it's an interesting point. You're always referring to materials, even if it's Blackstone or whoever. The material doesn't have to have a democratic base. You reason all the time. You read law professors. They're not elected. (Laughter.) I mean, to try to understand, to try to understand, it's not necessary that the origin of the material be democratic. That's normal, and of course these, where they're relevant, it's an effort to understand.

But there is a deeper meaning to that question which is very interesting to me, very interesting. When people think about the foreign court institutions, it's sometimes very hard for -- say for Europeans, to understand why Americans sometimes react negatively, so negatively to the thought that some foreign judges would be able to tell Americans what to do. They find that hard to understand, because they're judges, after all. I've even been saying -- I haven't said about telling us what to do, but I have pointed out that they're judges. But you can understand it; there is something deep in this reaction, and not entirely bad.

And it comes back to our being a democracy, as the questioner said. One of the most interesting phrases that I read -- to me -- in Madison is, if I can remember it -- and as I bring up at this moment, I usually forget the quotation -- but he said the American Constitution is a document of power granted by liberty, not a document of liberty granted by power. And what he's driving at is even if we end up at the same place as many European countries, the whole theory of our country is that power originates in the people and whatever power government has is delegated by those people; while in many foreign countries, even if they end up at the same place, it has been liberty that has initially been granted by a central power, whether it started out as a king or even a democratic government.

That changes the cast of mind, and it helps to explain why it's so deep in America to say, "But who are those people? We had no say. We had no say in them, in their position."

And so every time I hear a criticism of my own position, which is that we should pay attention to what they say, I stop myself from complaining -- too much -- by thinking at bottom there is something good reflected here. At bottom, there is reflected a very strong American belief that all power has to flow from the people and we have to maintain a check. That's a good thing.

But, of course, I don't think it stops me from looking at the foreign opinions -- (laughter) -- and even citing them. (Applause.)

MR. DORSEN: Justice Scalia.

JUSTICE SCALIA: I think it's fine to conclude on something that we undoubtedly agree upon. (Laughter.)

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.)

Powerline reaction to Scalia-Breyer debate on foreign law in US courts

Powerline, picked up by Instapundit and many other blogs, has a very critical take on Justice Breyer's comments in the the debate between Justice Scalia and Justice Breyer at American University Law School on foreign law in US courts, here. Hindrocket's comments come out of the AP story on yesterday's debate - you can go directly to the CSPAN site or go to the law school website, here, to link to the archived video feed of the entire event. The law school website, here, will have a full written transcription of the event by the end of next week, which should be welcome news to scholars and others. I have posted a discussion on this blog of why the issue of foreign law in US courts is so important - Powerline is absolutely right about that - beginning here. (You can find Ann Althouse's TiVo blogging of the event here and her pickup of news of the event in the press here.)

I was one of the organizers of the Scalia-Breyer debate - I'm a law prof at AU law school - and although the AP quote was, so far as I could tell, accurate, it was taken sharply out of context. Justice Breyer was speaking in a very specific exchange with Justice Scalia about the narrowly judicial act of interpreting legal texts, and it is quite unfair to take that remark about who participates directly in the process of interpreting legal texts that have already been informed by constitutional and legislative and other democratic institutions - judges, lawyers, law students (and it was obvious to the live audience that he included students as a courtesy to the audience of law students) - as being somehow antidemocratic. He was just noting the fact that legal materials, once they have been created through various democratic mechanisms, then become subject to interpretation by the interactions of lawyers and judges. It was nothing more insidious than that. A much better summary of the event is in Charles Lane's Friday front-page Washington Post article.

I yield to no one - not even Hindrocket - in my opposition to the drawing of foreign law into US constitutional adjudication. I have a long multi-post discussion on this blog outlining the issues and critiquing Justice Breyer's views, beginning here. I have a Harvard Law Review piece coming out in February that severely criticizes Justice Breyer's position, and asking him, among other things, why, if he is willing to cite cool, progressive European law, he does not also cite Shari'a law - for example, on how many female witnesses are needed to contradict male testimony, or on whether it is required to stone gays to death. If the point is that American jurisprudence ought to take account of global trends in law, how, without hypocrisy, do you limit it to those views that just happen to be congenial with the sympathies of a progressive, Europhile US judge? Isn't it hypocritical not to take account of what is arguably the much more global movement in law, the movement toward Islamization of law in many places from Aceh, Indonesia to large parts of Nigeria? Isn't taking account of all that stuff, and not just what one's friends in Western Europe say, equally required in order to have a "decent respect" for the opinions of mankind outside our own country? I have zero sympathy for Justice Breyer's position on this, and think it an erosion not precisely of American sovereignty, but of American democracy, for which sovereignty - what Lincoln called "a political community, without a political superior"- is its bulwark and defense.

The issue is not a decent respect for others' opinions in the wide world, but instead fidelity to a particular political community, the relations of whose members are constituted literally by a constitution, by a compact among themselves, and who give power over to unelected judges not in order that they draw upon the opinions of people at large in the world, however worthy or wise their thoughts might be, but to draw upon sources that have democratic provenance and legitimacy from within this particular democratic political community, because their interpretation by judges must be and properly is undemocratic. The price of being permitted the undemocratic, countermajoritarian act of judging in a democracy is that the materials one brings to the interpretive table must be materials which arise from within the constitutional and democratic processes of that political community - those which are accountable, through the legislative and other democratic processes, to the democratic political community.

That said, however, the particular comment that Powerline zooms in on from the AP is taken out of context and quite unfair to Justice Breyer.

Justice Breyer's real problem in the debate showed in his repeated assertion that this was not a big deal, it was no different from citing Blackstone or other extrajudicial materials - Shakespeare, the Bible, whatever. His answer to his critics who rightly wonder where the practice stops is disturbingly and, I would say, entirely ad hoc. Judges who are properly doing their job will only cite foreign law in rare and appropriate cases - and it is easy to guess what Justice Scalia did with that. As in many opinions of the Breyer-Souter wing of the Court - the Sosa case, for example, supposedly reining in the rampant use of the Alien Tort Statute - Justice Breyer seems to think that good judicial sense can find the right balance, and so there is no call to create hard and fast rules for lower courts. It ignores completely how litigation actually works - lawyers who perceive that foreign law is now fair game will start citing it, judges will note that it is at least partly accepted by higher courts and will begin responding to it, not by ruling it out of court, but on a substantive basis, and within a few years it has become standard practice to cite foreign law. Lawyers won't not be able to cite it and judges won't be able to ignore it. It will just evolve into an accepted, indeed required, practice unless there is a clear rule from the top down.

It was striking to me, however, how many of the professors I talked with after the debate, who despise Scalia and substantively think the entire world should have a kind of common global jurisprudence, thought that Scalia gave much the stronger argument.

I will have more to say on the debate and its implications later.

(Update, Friday, January 14, 2005: I've made some minor grammatical edits.)

(Update, Friday, January 14, 2005: In addition to Charles Lane's outstanding Washington Post account in today's paper, see also the MSNBC story, here.)

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

Scalia-Breyer debate information

(Update: Very, very pleased to announce that a transcript of the debate will be posted at a link from the law school's website within about three business days after Thursday - figure Tuesday or Wednesday. The video stream will also be archived at the law school site for those not able to watch it live.)

In case you are looking for information on the Scalia-Breyer debate:

Topic: "The Relevance of Foreign Law in US Constitutional Adjudication"
Who: Justices Scalia and Breyer, moderated by Professor Norman Dorsen, NYU
When: Thursday, January 13, 4-5:30 pm est
Where: Washington College of Law, American University, DC
Sponsors: Washington College of Law and the US Association of Constitutional Law (the US affiliate of an international scholarly organization for comparative constitutional law studies)

Web livestream: look under "videoconferencing" on this page, here.

For an informal discussion framing the issues, go here on this blog.

Reader response to "What's the big deal about foreign law in US courts?"

I was pleased this morning to find a thoughtful response to my multipart post on the relevance of foreign law in US courts, here, posted by Arthur at Ad Populum. I'll try to find a moment today to respond, although I'm rushing out of here now. I should emphasize, though, that the multipart post is simply taken from early notes from a section of my Harvard Law Review review essay on Anne-Marie Slaughter's splendid new book, A New World Order (Princeton 2004). It is not at all a finished product - which is true of all the stuff I post; I am looking to work out ideas here in this blog, not present final products - I was looking for something to help frame the issues for debate for folks not already up on the topic. I hope it is helpful. But Arthur's response was insightful, and I'll look to make some comments on it later.

Meanwhile, just to restate: Justices Scalia and Breyer will hold a conversation at American University law school, Thursday, January 13, 4-5:30, on the topic of "The Relevance of Foreign Law in US Constitutional Adjudication," moderated by NYU's Norman Dorsen. Rsvp to attend in person to secle@wcl.american.edu and more details can be found at the events section of www.wcl.american.edu. The event will also be livestreamed on the web, and details can be found to link to the livestream on the main law school web page, www.wcl.american.edu.

(The event is co-sponsored by the law school and the US Association of Constitutional Law, which is the US affiliate of an international scholarly organization for comparative constitutional law - Michel Rosenfeld of Cardozo Law School is the president of the US affiliate, Norm Dorsen is the founding president, and I am the treasurer and a board member. It's a very cool organization and everyone should join, dues are a mere $35 a year.)

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.)

What's the big deal about foreign law in US courts? Part 3

There is, of course, the practical point that Justice Thomas pointed out in Knight v. Florida, that “were there any support [for defendant’s argument] in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”[7] It is not especially clear that the citation of foreign case law has any real content - whether done here, in the United States, or abroad. Hong Kong legal scholar Yash Ghai has observed, for example, that in Hong Kong “the approach to the use of foreign cases is not very consistent; they are invoked when the support the position preferred by the court; otherwise they are dismissed as irrelevant.”[8]

And not surprisingly, since these cases are being cited outside the context in which they actually function as law. Not only are they inserted into a judicial context in which they have no immediate provenance, no legitimacy outside the bare words quoted, they also are stripped out of the system in which they actually have provenance and legitimacy. They are bare words on paper: this is not the ultimate meaning of cases in judging, but that is what they must finally amount to, stripped out of one system and pressed onto another. It might just be so much window dressing, a rhetorical flourish - which is what Ghai observes it to be.

This rhetorical function is likely more useful to judges outside the United States in giving legitimacy to their decisions than to judges within the United States. If your constitutional tradition is not very long, or is colonially derivative, then appeal to case law outside your own tradition can carry rhetorical weight. Moreover, the stability and democratic credentials of the state of which a court is a branch also matters – something which seems not to have persuaded Justice Breyer in citing to the court in Zimbabwe. The high court of Zimbabwe has been not just an honorable court, but a heroic one. Yet there is something profoundly wrong in citing to a court (no matter how heroic a role it has played in the losing battle for human rights in that country) that, not of its own choosing, is formally a branch of a cruel and tyrannical state. Perhaps Justice Breyer believed that by citing it, he gave it legitimacy as against Robert Mugabe’s wicked regime. I would respectfully suggest it is Mugabe’s regime to which such action lends legitimacy and that Justice Breyer erred in doing so.

The value of rhetoric from outside your own constitutional system is especially a different matter, however, if one looks to two hundred years of continuous constitutional history. It is not American hubris but, rather, conscientiousness, that urges that judges confine themselves to a tradition that carries legitimacy in part because it defines – by confining them – the sources and limits of that legitimacy.

Yet a sense of personal and communal attachments, social relationships, loyalty and social obligation might still make it seem to a US Supreme Court justice both good and politic to cite to those outside one’s own court system. Within the sociology of the US Supreme Court, it is not very clear how much such personal and social factors play a role, and whether they have the power, over time, to turn rhetorical flourishes into actual jurisprudence. Let me be blunter: it seems to me that Justice Breyer, and to a lesser extent Justices O'Connor and Kennedy, want to be seen as peers by the highly civilized, urbane, distinguished Western Europeans sitting on the leading constitutional courts of Europe and the EU. Our justices want to be members of those intellectual clubs, so to speak (having already joined, also so to speak, all the relevant clubs in the US). One way you do that, within the professional circle of judging, is by returning them the favor of citing them. Within the peculiar intellectual activity of judging, it is one of the highest marks of esteem. I don't propose to prove that last statement; nonetheless, it appears to me that there really are issues of personal connection, socialization, peer relationships, at work here.

(Update: Go to post 4, here.)

What the big deal about foreign law in US courts? Part 2

Enthusiasts of Justice Breyer's approach want to encourage judges to see themselves as engaged in a common global enterprise of judging alongside other judges in other legal systems, in which they are collectively socialized to understand themselves as creating a genuinely global jurisprudence. It should be tempered, to be sure, by local and national concerns, culture, social considerations, and so on – yet it should see itself consciously as also part of a global order. Judges should, on this view, have many interactions with each other, and specifically many face to face meetings in order to develop their sense of identity and community as judges engaged in a common enterprise of creating a global jurisprudence. They should, again on this view, see themselves as engaged in “dialogue” with other courts around the world to help themselves as a community of judges find common ground and approaches to common legal problems – which, as noted earlier, are far from limited to such cross border matters as trade but which should include the death penalty and such “values” issues.

The invocation of "common" legal problems is frequent in this discourse, and it frequently involves a curious elision, in which two separate questions are run together. One is legal matters which are “common” because they cross borders, such as trade or air pollution – the same actual thing, circumstance, or event touches two jurisdictions. The other is a problem which, in any actual instance, exists in a single jurisdiction, but which might also occur in another jurisdiction – such as the death penalty. It is “common,” however, only because it might occur in either or both; it is not “common” because any actual instance involves both jurisdictions. Conflating those two meanings of “common” risks allowing the considerations and analysis of the first, which plainly does require some rules to settle jurisdictional questions if nothing else, to sweep in everything that might occur in some place and another place, such as the death penalty. The first requires some level of interaction; the second does not, but wrapping the two together can convey the impression that it does.

For those who are strongly in favor of such developments, the globalist socialization of judges is intended, over time, to develop genuinely global social and psychological and communal allegiances that will affect how judging is done. Justice Breyer has always been very cautious in his public remarks as to how far the practice is intended to go in affecting the outcomes of US cases - is it intended to be merely rhetorical or something more? But for those who do go farther - Slaughter is one, and I am drawing on her view - this globalist orientation is intended to mark out such practices as US First Amendment case law, among others, as “outliers” to global jurisprudence, and to make US judges conscious of where their jurisprudence is an outlier with respect to global legal trends. It is further intended to be a vehicle for using US courts to deploy their considerable powers in the interests of a globalist agenda. It is not intended merely as a means for judges to extend their knowledge and sophistication in some background sense. Slaughter, for example, intends that American judges cite foreign cases as “persuasive authority, and that where judges do in fact “cite foreign decisions as persuasive … constitutional cross-fertilization begin[] to evolve into something deeper, resembling an emerging global jurisprudence.”(A New World Order, p. 78) And this is to take place as “genuine transjudicial deliberation within a newly self-conscious transnational community.”(p. 78)

Well, we should ask, what on earth could be wrong with that? It is a picture of progress, after all, toward a globalized world that is also a more civilized world, one in which each legal system sees itself as deriving from a higher, universal system of values and law, shared globally, tempering each other by reference to what one's judicial peers worldwide are doing. Surely it is an attractive vision? Certainly it is a vision with many, many believers - good folks who firmly see this as a means to a more just and peaceful world. If it has a fault, on this view, the fault is not with the vision, but with its utopianism and the difficulty of its realization.

My own view is that the vision itself is mistaken; it is a misconceived view of political progress, and a mistaken view of political community, expressed as democratic sovereignty. The problem is not just one of execution. But why?

(Update: Go to post 3, here.)