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More on Citations to Foreign Law:
Professor Michael Kelly has responded to my post on the fact that Justice Scalia and Justice Thomas are opposed to discussing foreign law in the course of interpreting the U.S. Constitution. As I noted in my earlier post, Professor Kelly's initial essay suggested that Justice Thomas doesn't cite foreign law because he lacks intellectual curiosity, and that Justice Scalia refuses to do so because he is afraid that citing foreign law will make it hard for him to defend originalism.

  Professor Kelly offers a more complete explanation in his new post. Here is his explanation of why he thinks lack of intellectual curiosity explains Justice Thomas's failure to cite foreign law:
  The intellectually curious have an innate hunger for more knowledge, are rarely satisfied with one solution to a problem and are drawn to compare - as Justices Stevens, Kennedy, O'Connor, Breyer and Ginsberg do when they cite to decisions of foreign courts. They also often tend to see the world in shades of gray rather than in starkly black and white terms - which admittedly can be a handicap if they are policymakers. Even Rehnquist demonstrated this natural compunction in Glucksberg when he noted the experience of The Netherlands as he was rejecting a right to euthenasia.
 I have not had as many conversations with Justice Thomas as Prof. Kerr has to refute his claim of first-hand knowledge to the contrary. All I have is Thomas' writing to form my opinion, which I have done. And his resistance to citation of foreign court judgements appears not be based on anything other than not wanting to deal with it.
  I'm not sure I follow the reasoning here. By what theory does judicial citation serve as an indicator of "intellectual curiosity" and "innate hunger for more knowledge"? Citing foreign law is easy; you just pick up a brief and cut and paste some citations. As far I can discern, that neither requires nor correlates with "innate hunger for more knowledge." And why is comparative international practice the relevant metric for intellectual curiosity? Why not use discussions of American legal history instead? If you pick legal history as the guide, then you will conclude that the more originalist Justices are the only intellectually curious Justices on the Court. More generally, what about Justice Thomas's opinions leads Professor Kelly to conclude that he in particular lacks intellectual curiosity? For the second post in a row, he does not say.

  In his explanation for Justice Scalia's refusal to cite foreign law, Professor Kelly acknowledges that Justice Scalia "has a philosophical reason for resistance." Justice Scalia does not cite foreign law because in his view it is irrelevant. Professor Kelly continues:
  [That] is why I posed the question of what he may be afraid of (again, I don't know the answer), although I suspect it could be that originalism is not used widely by foreign courts. If it were, perhaps he would have occasion to cite them. However, his bigger fear (again guessing here) may be that a slippery slope exists. If judges begin citing foreign law as non-mandatory, how long will it be before they begin using it to decide cases?
  Again, I'm not sure I follow. Justice Scalia sees foreign law as irrelevant because foreign decisions do not even claim to be interpretaions of the U.S. Constitution. The foreign decisions are interpretations of foreign law, not U.S. law. Why would we think it odd — or, in this case, a sign of fear — not to discuss something that doesn't even claim to be relevant to the case? It seems to me that the normal judicial practice is to not cite that which is deemed irrelevant; I'm not sure why that doesn't fully explain Justice Scalia's practices. Justice Scalia doesn't discuss the Bible in his opinions on constitutional law, either. Should we conclude that he is afraid of religion?

  In any event, I hope I'm not being unfair in my response. I have enabled comments just in case; I am confident that VC readers will set me straight. As always — you knew this was coming, didn't you? — civil and respectful comments only.

  UPDATE: I have deleted two comments already because they were neither civil nor respectful. Sorry to police things like that, but I don't open up comments so commenters can hurl insults.
Crime & Federalism (mail) (www):
Justice Thomas isn't curious because he doesn't cite foreign legal materials; and Justice Scalia is afraid of Europe because he doesn't cite foreign legal materials. Those aren't arguments; they're bigoted statements unsupported by any evidence. (Unless, the good professor can't create his own tautologies. Namely, those who cite foreign law are curious and cosmopolitian because they cite foreign law.)

I read Professor Kelly's arguments as yet another application of the thesis that "conservatives are stupid and afraid of the rest of the world." I'm not sure it's possible to refute such bigotry since bigotry isn't founded it reason, but ultimately, is based on emotion - usually hatred.
5.27.2005 8:21pm
Mike in Colorado (mail):
Non-lawyer here. Professor Kelly makes no sense at all. It seems quite obvious that Justices Scalia and Thomas see their job as interpreting the US Constitution. It's hard to see what the decisions of foreign courts have to do with that task. I doubt that fear or "lack of intellectual curiosity" (whatever that is supposed to mean) have anything to do with it. Based on what I've seen of these two, neither description fits too well.
5.27.2005 9:13pm
Adam Scales (mail):
Let me state my biases up front: I am a great admirer of Scalia and Thomas, and one of the small handful of law professors who count themselves so. I believe that Thomas has been a fine Justice, and Scalia is an intellectual titan.

Professor Kelly's post is a regrettable indicator of one of the problems I have with law professors generally and the international law professoriate in particular. I meet very few professors who are interested in curbing the reach of their domain: Torts professors (I am one) typically abhor any innovations in derogation of their precious, well-studied common law. My best friend teaches estate taxation, and that fact - along with a number of well-reasoned arguments - goes a long way towards explaining the moral inviolability of the estate tax.

International law types reign supreme here because - even more than torts and tax professors - they are pretty much powerless. Ninety-nine percent of the people who take international law seriously are international law professors. They want nothing more than to see their elaborate, multifactorial models of organic rights and duties codified into the laws of states that actually possess armies and the power of the public purse. Until then, they are little more than a debating club.

I think it a serious error to presume that the Justices who support use of foreign law are more intellectually fit or curious than anyone else. As a professor of insurance law, I can tell you that a) risk distribution is an intellectually fascinating way to study the organization of society, but b) most Supreme Court cases involving insurance have utterly failed to grasp the larger context into which that study fits. In fact, they usually get the precise question before them wrong. Why should they be any better at determining, using a handful of citations and perhaps no actual "local" knowledge, the meaning of foreign law?

Does Professor Kelly believe that the seemingly strange legal practices of foreign countries can be meaningfully understood without being steeped in the relevant cultural and political tradition? Could a foreign lawyer - someone as intellectually curious as Justice Breyer, say - grasp the meaning of the Commerce Clause by reading translated excerpts from Lopez? Does anyone suppose that race- or sex-based preferences, as enshrined in the law of some developing countries, shed light on either the original meaning or contemporary sense of the 14th Amendment?

Plainly, the Court is at its limits when trying to peer into the intricate clockwork of our own Constitutional history; international materials may represent fascinating and upstanding ways to organize a legal culture, but I must have missed that grant of power to the Court in Article III.

Again, I have my biases. I see the effort to insinuate international law into Constitutional law as little more than a public choice/venue shifting power grab. Just as political liberals teeter from preferring state fora to federal courts for the vindication of their views, they now look abroad to like-minded colleagues precisely because the current Court does not generally share their views on capital punishment and other issues. All those intellectually incurious souls such as myself who have seen glimpses of what passes for free speech in Canada, Britain, much of Europe and the Islamic world should join Scalia and Thomas in resisting the interpolation of those values here.
5.27.2005 9:37pm
Warren (mail):
I fear the lack of intellectual curiosity here lies with those legal scholars who have no interest in really understanding originalist and textualist theories of interpretation. Another good exposure of this phenomenon can be found at http://www.nationalreview.com/comment/whelan200505190812.asp
5.27.2005 9:39pm
NickM (mail) (www):
It would appear that Professor Kelly wants Justices of the United States Supreme Court to act as philosopher-kings.

To suggest that Justice Scalia does not cite foreign courts because they are not originalist is to either be too dull-witted to recognize that whatever their theory of interpretation, the United States Constitution is NOT the document they are interpreting or to adopt a radically atextualist approach, wherein there is a right answer to be divined by the judges irrespective of the promulgations of the lawmaking bodies.

Nick
5.27.2005 10:25pm
BLS07 (mail):
I'm not sure if the analogy is correct but: if I attempt to introduce irrelevant evidence or line of questioning and I get slapped down, do I get to accuse the judge of being stupid and/or afraid?
5.27.2005 11:25pm
The Editors, American Federalist Journal (mail) (www):
"...do I get to accuse the judge of being stupid and/or afraid?"

Sure you do. And your losing client will love you for it. :)


Question for the audience: Do the advocates of a "living, breathing" Constitution apply that thinking to statutes and regulations, or only to the Constitution? If they can ignore the written words of the Constitution, why not ignore the text of other laws as well?
5.27.2005 11:45pm
Cecilius:
Calm down, Jarhead. It's one thing to criticize Professor Kelly's ideas, but don't do it so harshly that the left and the right get so steamed that they stop speaking to one another. A lot of people invite the debate between the sides that often results from ill-advised statements.

As for Professor Kelly, his poorly-crafted arguments highlight the reason why the left and the right talk past each other so often: Professor Kelly and his ilk are happy to take whatever method is necessary to get the political results they desire. The citation to international law is merely a symptom of the 'my-way-by-any-way' method of Constitutional interpretation. Because it, and its endless variants, are outcome-based instead of rule-based, attempts to pretextually explain them as justifiable and consistent rules often degenerates into sputtering anti-logic and insults (albeit politely phrased insults in Professor Kelly's case). Insulting those who disagree with you does not make one's rule any more cogent or defensible.

Even assuming for the sake of argument that those with an interest in foreign law are somehow more intellectually curious than those interested in the historic understanding of the U.S. Constitution, why is this intellectual curiousity anything but misplaced? Critics of citation of foreign law have asked only one question through the entire debate: of what relevance to the U.S. Constitution are these selective citations of foreign laws? Professor Kelly's answer is that Scalia is scared and Thomas is stupid. Brilliant.
5.27.2005 11:53pm
Gentle Reader:
Okay, I'm not American, and I have a question about this whole using international law thing, and how it's got smoke coming out of some people's ears. On the other hand, I think my confusion might arise from this other strange American beast called originalism.

Question: Do Scalia and Thomas oppose the use of statements from international jurisprudence because of some theoretical objection to it, or because it is empirically unnecessary? Ok, Ok, I lie. I am pretty sure they oppose it for theoretical reasons, relating to their theories of originalism. However, isn't the fact of the matter that they can afford to be dismissive of international law only because they have so much U.S. legal history and jurisprudence upon which to draw?

I guess my question is, what if this weren't the case?

Let's take an example. Let's say there is an imaginary country named Blanada. Let's say Blanada decides to adopt a constitution. Let's say Blanada adopts a constitution that protects free speech. The constitution is enshrined; there is much rejoicing.

The next day, someone begins an action in the courts complaining that their free speech has been infringed. What does the Court do? How should it interpret the protection of free speech? Easy. The judge phones up the framers on his or her Motorola. In fact, the Court calls ALL the politicians who worked on the constitution, and all the bureaucratic drafters, and all the government lawyers.

Problem.

They all disagree on how the provision should be interpreted in this particular case.

Undaunted, the Court (or perhaps an ambitious clerk) gets on Nexis and finds all the statements that the various politicians made at the time they were drafting the constituion. Uh-oh, they all seem to be saying different things here, too.

The problem is, none of the politicians ever agreed on exactly how the free speech provision should be interpreted. It was a political deal, like all democratic constitutions are.

Which is all very well and good, but what's a Court to do? Should it just make it up? Should it look at the comments of only one or two of the more popular politicians and ignore everyone else? What to do? What to do... Suddenly, a light bulb goes off! Right next door to Blanada, there is another imaginary country called Blamerica. Blamerica has had a constitution protecting free speech for hundreds of years. There are literally thousands of learned judgments interpreting such a provision. Maybe. Just maybe, the Blanadian judge should have a little look-see at how they do things in Blamerica. Sure, Blanada's constitution is not exactly word-for-word the same as Blamerica's, but it sure is pretty close, and would it really be so wrong for the Blanadian judge to at least read some Blamerican cases to get his brain juices flowing? And if he or she reads them and uses their ideas, to be honest, shouldn't he or she cite them?

So the Blanadian judge reads the Blamerican cases, and uses them to help interpret the brand new Blanadian constitution.

After many years, there is so much Blanadian jurisprudence that the new Blanadian judges don't have to read or use as much Blamerican law. They have enough of their own.

Usually.

But what if something comes up that they haven't thought about that much, or what if Blamerica has taken a different approach on an issue. Should the Blanadian judges now that they have some undefined "base" of jurisprudence ignore that?

What if it is a really good idea?

They used Blamerican law in the old days, why can't they use some of it today, as long as they remember that it has to be able to fit with the newly established Blanadian jurisprudence? That really cannot be so wrong. There is no magical point at which the Blanadians are theoretically stopped from using Blamerican law. It's just an empirical question of how much they will need to once they have their own jurisprudence. Isn't it?

Anyway, so, I guess my question is this: why can't American judges look at what other countries have done? What if someone had a really good idea? But I guess my real question is "Why doesn't everyone think originalism is retarded? Not retarded in a right-wing v. left-wing way, but just plain old retarded retarded?"

Honestly. Point me to cases or books or things. I just don't get it. Thanks.
5.28.2005 12:13am
Marc:
I am not sure I understand the hoopla about citing foreign law. American courts, state and federal, cite persuasive evidence all the time. Foreign courts cite the United States Supreme Court consistently. Look for wisdom where you can find it.

By the way, I am one of those people who would "blow a gasket" if the Court string-cited a bunch of biblical verses (the example in the first in this series of posts). Not so much because the Court would be taking sides in the culture wars, but because it would show an incredible insensitivity to the First Amendment.
5.28.2005 12:26am
rholtmeyer (mail):
The intellectually curious have an innate hunger for more knowledge, are rarely satisfied with one solution to a problem and are drawn to compare - as Justices Stevens, Kennedy, O'Connor, Breyer and Ginsberg do when they cite to decisions of foreign courts. They also often tend to see the world in shades of gray rather than in starkly black and white terms - which admittedly can be a handicap if they are policymakers.

Professor Kelly's remarks are excrutiatingly condescending. He assumes that a person is intellectually lacking as he states that "the curious have an innate hunger for more knowledge." The negative of this statement inherently asserts that people who are not intellectually curious do not seek knowledge. I have my doubts that there are any of us who are not intellectually curious. Intellectual curiousity is what makes us human. The ability to recognize and question our surroundings separate us from the rest of the creatures of the earth. The logic of Professor Kelly's line of thinking is dubious and needs to be filed along with other general assumptions about humanity that only looks at a few select pieces of evidence to come up with an all-encompassing conclusion, and that place is the garbage bin.
5.28.2005 12:43am
A Blogger:
Marc,

Can you fill us in on why you think that citing Biblical law "would show an incredible insensitivity to the First Amendment"? Many conservatives believe that citing foreign law shows an "incredible insensitivity" to the judicial oath, the ninth amendment, and the preamble to the constitution. Why is citing Biblical law different from citing Biblical law?
5.28.2005 12:44am
John Jenkins (mail):
Marc, that's just it. Foreign courts should have no persuasive authority after about 1789. At that point, the American common law began to diverge from the British common law.

Moreover, those countries have nothing to say about how the properly interpret our Constitution because those other countries' courts are interpreting their own laws. It would be akin to an analysis of the Oklahoma State Constitution by Oklahoma's Supreme Court informing an analysis of the Texas State Constitution by the Texas Supreme Court. It just doesn't work for the most part.

If statutes are substantially similar, or even identical, then similar interpretations (a la UCC cases) might be viable, but there is no body of foreign law similar enough to our own to make interpretations of it meaningful in the context of a U.S. Supreme Court decision interpreting the United States Constitution.

The appeal to foreign authority is merely a way to justify a realist's approach: it is not atextualist, it is aconstitutional. It is a judge making a decision by an appeal to the authority of numbers-"Enough other people believe this that it must be right"; or the appeal to authority of some other sort-"France/Germany/Belgium is morally superior to us, therefore their law is better than ours and we should follow it."

If the legislature wants to look at how foreign laws have been implemented to deal with problems and determine whether that is good for the U.S., that would be different and well within the expertise of the Congress. The the courts would be able to look at the law and see whether it passed constitutional muster. It should not be the province of the courts to enforce foriegn dictates and beliefs through judicial fiat.
5.28.2005 12:53am
Patterico (mail) (www):
Interesting how folks like this professor and Harry Reid leap to the conclusion that Thomas just isn't that bright, whereas Scalia is just someone they disagree with.

Then it turns out that their reasoning completely fails to support the proffered distinctions. (Reid shows himself not to have read Scalia's or Thomas's opinions, and this professor, while not as inartful as the bumbling Reid, fails to offer any support for his own assertions.)

Sounds like as good a definition of bigotry as any . . .
5.28.2005 12:59am
Cory H.:
While I generally agree with Scalia and Thomas on the issue, I don't agree with those that entirely oppose any reference to foreign law. For example, there are areas of the Constitution that are based upon the common law, such as the 7th amendment, that requires understanding what the common law was in 1789. Would it be inappropriate to look at an 18th century common law decision from England in such cases? Likely not, as the Supreme court has recognized that there was a relationship between American and English common law in that era and has used that relationship to answer Constitutionally relevant questions of common law. Would it be entirely inappropriate to cite cases after 1789 in England on issues of the common law? Perhaps not, especially if it were a case that was examining the particular issues of 18th century common law that the Supreme Court was trying to address.

Another area that our federal or even state supreme courts might rely upon foreign law is our property laws, which descend from England and Spain. Were an obscure and archiac legal problem to arise as a result of the heritage of law we inherited from these countries, why should the courts not see if foreign law has tackled the issue anywhere?

In essence, there are areas of the law where our Constitution or other legal systems have possibly meaningful ties to foreign jurisprudence. However, before I sound like an outright advocate of international law, I fully admit that these areas of law are quite limited in scope. Nor do I see why their existence should provide a basis for arguing that foreign jurisprudence should be cited in matters where none of these special relationships exist.
5.28.2005 1:00am
A Blogger:
Cory H.,

Scalia and Thomas don't object to citing common law english decisions that were embraced by the Framers. They do it often. The objection is to modern cases that don't have any relevance to the U.S. Constitution.
5.28.2005 1:23am
CharleyCarp (mail):
Oh, for God's sake! I cite California law to courts in Maryland, and Alaska law to courts in the Virgin Islands. Tennessee law to courts in Missouri, Rhode Island law to courts in the District of Columbia. And the world doesn't end.

I have a case with a particular issue of first impression in the DDC. There's a great decision from California that's directly on point, one from Illinois going exactly the other way. Arizona and SD going the Ill way, and a NY federal court going the CA way. It's a policy choice, an Erie guess, and the issue pits two competing common law concepts against eachother. I'd cite a New Zealand case if I thought it was persuasively reasoned.

I don't follow whinefests all that closely, and so cannot cite chapter and verse why citing foreign law is such a big deal to some people. If it's about looking around the world to see what evolving standards of decency are, I'm neither shocked nor offended, and I think those complaining are probably more upset about the relevance of evolution in standards, than in how that evolution is depicted. That is, it strikes me that citation is an excuse for complaint, but not the actual reason for complaint.

Responding to the Editors, I'm not sure the people whom you are addressing perceive themselves as ignoring the words in the Constitution. My guess is that they would more likely see themselves as resolving ambiguities in favor of underlying principles. The point of the thing was not to create holy writ, but to design a system, a primary feature of which was diffusion of power between branches of government, between government and individual, between state and federal. The system had to be, and was, substantially revamped in the wake of the Civil War to include a balance between state and individual. I'm not one of those people -- that is, I don't think that the Constitution lives and breathes. I do think, though, that we oftentimes have failed to fully appreciate, or fully actualize, the restraints on the state's power over individuals that is inherent in the thing. That is, I would say that it was a defect in our culture, not our Constitution, that caused us to miss for a century that segregated schools denied equal protection. We're still fine-tuning our understanding of what it means for the government to take property -- see the decision this last week -- in these cases, it's not the Constitution that lives, it's us. There are, of course, parts of the constitution where evolution is built in, like excessive bail. Or unreasonable search. I see no reason on earth why these terms shouldn't be defined as of the time that the government is imposing them on an individual.

I wonder if an originalist can explain to me why the federal government shouldn't only have to pay, for a taking of real property, what that exact tract of land was worth in 1789. I mean, why don't we look at values in 1789 to decide what is "just"?
5.28.2005 1:26am
OrinKerr:
FWIW, I wrote a long post awhile ago about why many conservatives object so vigorously to the practice of citing to foreign law in Constitutional cases:


Foreign Law and the Culture Wars
5.28.2005 1:41am
CharleyCarp (mail):
Thanks for the link. I think the analogy to the Bible is pretty seriously flawed. The laws (statute and decisional) of Canada, or New Zealand, are enacted/interpreted for the same basic purpose as laws of the US. Each society is confronting more or less the same issues, each set of lawmakers is weighing the same kinds of policy decisons.

The Bible is a completely different animal. That a US Supreme Court justice would find the reasoning of an Australian judge interesting, persuasive, or relevant on a matter of what kind of search is reasonable, or what process is due, is utterly unsurprising. He/she is looking at someone similarly situated, with similar training and temperment, and similar modes of analysis. Hell, the Aussie has probably studied American law, and his/her take on due process may have been influenced. The opinion would be interesting and, if well reasoned, worth thinking through.

This commonality is utterly lacking between Supreme Court judges and Old Testament prophets. Or Supreme Court justices and Apostles. Or Supreme Court justices and Paul. Different issues facing them, different contexts, different audiences for their writings, different authority. Completely different purpose.

That someone, despite the similarity between our law and that of other countries, and the dissimilarity between our law and that of the Bible, would prefer the latter to the former (I don't mean you, but rather some others out there) says much more about a war that those people have kindled in their own minds, rather than any struggle actually going on in the Court. You can bet that it's not an intentional act of war, on the part of a justice who finds an Australian precedent worthy of note.



Was it Praisegod Barebones who tried to completely replace the common law -- and the equity courts -- with the Old Testament during Cromwell's reign? The original 1648 code of laws of Massachusetts Bay was largely drawn from the Bible. It's an experiment that was tried and dropped centuries ago, for good and sufficient reasons in my view. (I guess that puts me on a side in some war too . . .) They had a statute providing for the death penalty for a child's defiance of his parent.
5.28.2005 2:06am
Jason (www):
You are completely right. I award Kerr the smackdown.
5.28.2005 3:11am
A Blogger:
Charley,

Three possible problems with your view, I think. First, you are making a HUGE assumption that the job of an American Supreme Court Justice is to find interesting solutions to basic societal problems. Isn't that the legislature's job, not the judiciary's?

Second, much/most of the citation to foreign law is not a citation to the constitutional holdings of common law courts that share a common legal tradition to that of the U.S., such as Austrialia. Rather, it is sometimes a reference to foreign legislative decisions, and sometimes a reference to the decisions of courts without any common thread of constitutionalism that the U.S. has. So your exmaple kind of stacks the deck.

Third, and most fundamentally, I would imagine that whether you see Biblical law or present-day French law as more relevant to the United States today depends largely on which side of the culture war divide you are on. If you are on the red side, you probably see the Bible as your guide to daily living. IT IS THE WORD OF GOD. It is much more relevant and binding on you than mere U.S. law, and millions of times more relevant to you than the views of a French bureaucrat. I think you may have to be on the blue side of things to draw the conclusions you do.
5.28.2005 3:12am
Todd Klimson:
Non-lawyer here as well. I concur with professor Kelly. Lets interpret The U.S. constitution by citing The laws of Hammurabi.
5.28.2005 3:19am
Consigliere (mail):
Tha analogy to the Bible doesn't stand on all fours, but it is not seriously flawed. You state that each society listed is facing the same issues and then find that this commonality is lacking with those referenced in the Bible. Little more than a cursory read will reveal the following issues discussed in the Bible:

Property rights
Inheritance law
Taxation
Criminaal law
Prisoner's rights
Welfare

And that is just to name a few. You may not like the solutions, but the issues are ALWAYS similar--How do we handle our relationships with each other?

That is why it is so important that we look to the Constitution for our answers, rather than from the Bible or Europrudence.

As to the Prof. Kelly's thoughts on why Justice Scalia and Justice Thomas don't cite to irrlelavant cases, he has miserably failed to meet his burdern of proof. His proposition, his burden. The only evidence is opinion evidence that is purely speculative. Directed verdict against Prof. Kelly's propositions.
5.28.2005 3:51am
Clayton E. Cramer (mail) (www):
"Non-lawyer here as well. I concur with professor Kelly. Lets interpret The U.S. constitution by citing The laws of Hammurabi."

Why would do that? What evidence do you have that the Framers considered the Code of Hammurabi relevant to our laws? On the other hand, the evidence that the Framers recognized the relevance of Christianity to American laws is very clear—that is part of why a number of American state constitutions after the Revolution required office holders to be Christians, and some were even more explicit that you had to be a Protestant.

Let me remind those who think so highly of citing the decisions of foreign courts that the job of our judges is very clear, in Article VI: " This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." The only escape clause for the "foreign courts" crowd would be if our laws contradicted a treaty.

If there is some uncertainty as to how the courts should resolve a question of interpretation, I can see why it might be tempting to see how other courts have interpreted similar provisions. Indeed, the Supreme Court has occasionally looked to the state supreme courts to see how they have dealt with similar questions. See U.S. v. Miller (1939), where the Supreme Court did so (and largely screwed up the interpretation in the process). But when the Court decides to scrap state sodomy laws largely on the strength of foreign courts deciding to do so, with no similar text involved, and in direct contradiction to clear original intent—well, it is just a bit hard to take seriously this notion of using foreign court decisions.
5.28.2005 3:56am
Todd Klimson:
Clayton,

I meant it as a joke. I vehemently deplore the use of foreign citation. Your thesis is right on the mark.
5.28.2005 4:36am
CharleyCarp (mail):
I see that no one took a crack at answer my question on the Fifth Amendment.

I don't think anyone is arguing anywhere that post-framing foreign law is binding authority on US constitutional questions. It's illustrative only. Or evidence of a particular proposition: 3 countries think X. What's really the matter with knowing what other countries think? And by the way, I think 21st century France is much closer to our own society, wrt legal traditions, than the societies for whom the Bible was written.

WRT what the job of judges is, I think this is very clear: their job is to resolve the cases before them. In any court, this means that one guy is claiming that the law is X, the other that the law is Y. At the Sup Ct level, it is nearly always the case that one or more of the regional courts of appeal have chosen X, one or more have chosen Y, and hell, some may be going with Z. In each of these cases, hysterical rhetoric to the contrary, the judges on the court of appeals have concluded in good faith that X, Y, or Z is the correct understanding of the law. So the Sup. Ct has to choose. Sometimes the result can come from an interpretative methodology, sometimes it has to come from making a policy choice. This latter is especially the case where the Constitution has itelf embedded changing standards in the relevant provision, as with "just" in the Fifth Amendment.

(Here's an example from a case I had. A great many Americans had property expropriated by the Iranian government during/after the Iranian Revolution. A tribunal was set up at the Hague to adjudicate claims, and while the claimants themselves could litigate claims over $250,000, those under were to be pursued by the US government on behalf of the claimants. In a move to placate "Iranian moderates," the US government espoused, that is took ownership of, the 'small claims,' and settled them all for a single lump sum payment from Iran. Then the US government conducted an internal adjudication of the claims. It rejected 2/3 of them outright, and for the remaining 1/3, paid principal but not interest. OK, now there's plenty of law for the proposition that a chose in action is property within the meaning of the Fifth Amendment (and, for reasons I won't get into, some of the property taken by the US government was real property in Iran), and for the proposition that just compensation includes interest (indeed the tribunal routinely awarded interest). Consequently, we sued, on behalf of the 1/3, for the difference between what was paid and what the property was worth when taken. I don't imagine that the Bible provides a single solution for this dispute. I think that the constitution does, but the courts (Federal Claims and Federal Circuit) thought it provided the other answer wrt what is "just,", and 4 justices of the Sup. Ct. couldn't be found to disagree.)
5.28.2005 9:31am
CharleyCarp (mail):
I can't imagine that anyone misses the First Amendment problem of citing the Bible as binding authority because it is the Word of God.

I have no problem at all with citing it for historical propositions, and have done so myself.
5.28.2005 9:35am
CharleyCarp (mail):
And yes, I think that the Laws of Hammurabi might very well be relevant in a US case. And yes, I'd cite them if they went my way. E.g., "From the time of Hammurabi, [proposition X] has been widely accepted . . . [cites to Hamm; Roman Code; a Plantegenet or Tudor era law; something modern].

And there wouldn't be anything wrong with the other guy saying "Counsel has completely misconstrued the Code of Hammurabi. While section Y is quoted correctly, section Z shows that proposition X does not follow. This same logic applies to the other authorities . . ."
5.28.2005 9:44am
Simon:
CharleyCarp:

You say that you routinely cite law from foreign US jurisdictions, and wouldn't hesitate to cite law from foreign countries if you believed it to be well reasoned and on point. Presumably, you write as a litigator, using whatever means you must to persuade a court to your client's benefit. That is not the issue here. Nobody is suggesting that litigants should not be free to cite whatever they please (within their ethical duties). The issue here is whether a judge may rely on those foreign opinions.

You also say "I don't think anyone is arguing anywhere that post-framing foreign law is binding authority on US constitutional questions." Once the Supreme Court adopts a foreign law it does indeed become binding on US constitutional questions. The question is whether it would be proper for the US Supreme Court to reach so far out of the US constitutional tradition in that way and import a decision that isn't grounded in the the US Constitution, or more broadly in any of our domestic political traditions with their unique history and relationship between a society and its government.

As several people have pointed out, comparative law would be proper for a legislature passing a statute. It may also be appropriate in resolving specific private cases of an international character such as your Iranian international arbitration example (private international law already reminds judges to remember the international character of the cases they adjudicate). It is not appropriate in constitutional interpretation. Interpretation of the Constitution determines the proper relationship between US citizens and their government. The sources for that binding interpretation should be limited to sources drawn from the traditions of the polity that will be bound by it.

If this causes a divergence between the US and other polities, so be it. It is not improper for different polities to structure their societies differently, and not the place of the Supreme Court to try to eradicate those differences by importing alien traditions.
5.28.2005 10:15am
A Blogger:
CharleyCarp says,

"I can't imagine that anyone misses the First Amendment problem of citing the Bible as binding authority because it is the Word of God."

But no one is suggesting that either Biblical Law or foreign law should be cited as binding authority. The question is whether it is problematic if judges add a throw-away paragrapoh pointing out, just for the sake of a comprarative perspective, whether a constitutional holding is or is not consistent with either a) foreign law or b) biblical law. Do you think the latter would violate the First Amendment? And if so, can you explain why?

(Bonus points if you cite foreign law in the course of your answer!)
5.28.2005 11:10am
Doug L. (mail):
It seems to me that it would not be inappropriate for the Court to refer to, or cite, foreign legal sources, to the extent that they say something relevant, in the same manner that it cites law review articles or books. That is, as support for factual assertions (X happened or Y was or is commonly believed or Z is a likely consequence) but not in any way as legal suthority (We agree with the Court of ABC that X would be unwise).
5.28.2005 12:02pm
CharleyCarp (mail):
Simon:

1. If a judge finds a New Zealand case, or an Italian case, that I cite to be persuasive based on the force of its reasoning, then he/she is perfectly free to cite it.

2. I don't think any citation of foreign law at issue here has been "adopted." The reasoning of a foreign opinion might be adopted, to the extent it is persuasive as an interpretation of a similar concept in American law. This still does not make the foreign law binding in the US. Example: suppose some kind of novel case on the nature of consideration comes up, and the other authority out there is a case from Finland. Litigants are free to cite the Finnish case, and the court is free to say "this is an issue of first impression in this jurisdiction. I've read the Finnish decision, and am persuaded that they have provided the best insight into how this issue should be resolved. I'll decide the case the same way." If the Supreme Court of Finland (or whatever it's called) later overrules the Finnish decision, this wouldn't have any impact in the US. That's because even thought to US court followed the Finnish example, it did not adopt Finnish law, and Finnish law is not controlling in the US jurisdiction. (Although should the issue ever arise again, or should it arise in some other US jurisdiction, litigants, and courts, could well say 'hey one US court said X, following a Finnish decision, but now Finland follows not-X. For the same reasons, we think not-X ought to apply here.')

3. My Iran case didn't have anything to do with Iranian law. It's all about what is just compensation under the US Constitution. My point was that these questions are not simple, and courts are and must be free to think about whatever they find helpful as they wrestle with what "just" means in our Constitution. Now if we'd had cases from other countries on how "just compensation" is handled in the adjustment of claims context, we'd have cited them. Not because they are binding, but because there was precious little contemporary law on the subject. (Our primary US case authority arose from disputes in connection with (a) the undeclared war with France in the first Adams administration and (b) the purchase of Florida.) Not because Norwegian ideas of what is "just" are binding, but because they might be persuasive. Or just informative.

Blogger:

4. I don't see a First Amendment issue with citing biblical law in a comparative capacity. For example, the 1648 Massachusetts Bay code provided [i]f any man LYEYTH WITH MAN-KINDE as he lieth with a woman, both of them have committed abomination, they both shall surely be put to death: unles the one partie were forced (or be under fourteen years of age in which case he shall be severely punished) (emphasis in original). The General Court cited Leviticus 20:13 in the Code, as its authority for this law (but having adding defenses not in Leviticus). So a US court could say 'the Old Testament barred homosexuality' or 'colonial legislatures understood the Old Testament to bar homosexuality' or 'colonial legislatures barred homosexuality, following Leviticus.' No First Amendment problems there. What I don't think a US court can say is 'homosexuality is illegal in this jurisdiction because it runs afoul of the Word of God.'

"Sodomie" by the way was addressed as item 8 in the Capital Lawes section of the code. Item 1 was [i]f any man after legal conviction shall HAVE OR WORSHIP any other God, but the LORD GOD: he shall be put to death. Item 3 was [i]f any person within this Jurisdiction whether Christian or Pagan shall wittingly and willingly presume to BLASPHEME the holy Name of God, Father, Son, or Holy Ghost, with direct, expresse, presumptuous, or high-handed blasphemy, either by wilfull or obstinate denying the true God, or his Creation, or Government of the world: or shall curse God in like manner, or reproach the holy Religion of God as if it were but a politick device to keep ignorant men in awe; or shal utter any other kinde of Blasphemy of the like nature &degree they shall be put to death.

Sometimes I get the feeling that there are folks out there who think the First Amendment shouldn't bar these provisions . . .
5.28.2005 12:27pm
Simon:
CharleyCarp:

The constitutional issues we are talking about here are not issues of first impression in the US. Things like the meaning of the cruel and unusual punishment clause are hardly new. Applying foreign law to interpret them certainly would be new. While a litigant would be free to cite anything under the sun to argue his case, the judge would be wrong in my opinion to refer to foreign law as persuasive authority.

Remember, "persuasive" doesn't just mean persuasive to the ideosyncratic opinions of a particular judge as if he were deciding the issue in a vacuum. It means persuasive within the universe of law adopted within this polity. That is what Article III gives them the power to do. The judge is limited in his menu of tools to only those that fall under the Constitution adopted by the public and which the public has consented to be governed by.

Because the citizenry of the United States have not consented to the Finnish Constitution, law persuasive to a Finnish court is not persuasive as to the United States. Judges have a duty to not defer to such laws however persuasive they might be to them personally. It is simply not their place to so depart from the limits of their constitutional role. What other governments consented to by other polities have decided is quite simply irrelevant, and no judge should concern himself with trying to reconcile US with foreign law unless US constitutional principles expressly call for that reconciliation (e.g. Charming Betsy, or because of a treaty entered into by the United States). It certainly shouldn't be simply a springboard from which to contradict US law, which in my example would be what reinterpreting the cruel and unusual punishment clause to conform with Finnish law would be.

By the way, your Iranian example is inapposite for a more fundamental reason. You say that "four justices couldn't be found to disagree." Presumably you are referring to a denial of certiorari. I shouldn't have to point out that denial of cert is not a decision on the merits. You have no way of knowing why cert wasn't granted in your case, you certainly can't assume or assert it is because 6 justices agreed with you!
5.28.2005 12:54pm
Zach (mail):
Perhaps I'm being excessively literal, but couldn't you argue that giving weight to foreign opinions is expressly forbidden by the 10th Amendment?

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

To my eye, that reads as saying that all constitutionally significant powers must be allocated to one of 1) the United States, 2) the states respectively, or 3) the people. Thus, the ability to set precedent is expressly forbidden to foreign courts, which are none of the three.
5.28.2005 1:34pm
CharleyCarp (mail):
Simon: lost the Iran case, couldn't get cert. Couldn't get 4 justices to disagree with the Circuit.

I don't think the Constitution imposes any duty on any judge to ignore persuasive reasoning anywhere. Can you cite me the provision that requires this? Or is it in a penumbra somewhere?

I'm not saying that foreign law is binding on a US court. I'm saying that a US court can look at how a Finnish court interpreted a Finnish statute and say, 'hey, that's a fair view of what these terms mean, and faced with a similar provision in my statute, I think I'd apply the same reasoning.' Nobody's talking about conforming anything, here. And it doesn't matter what some polity said, because, by definition, we're looking at similar statutes. If you're looking at a judge who saying 'hey, here's a Finnish case on a Finnish statute that is completely different from the one at issue before me, but I like it so much I'm going to completely ignore the language of the statute before me and substitute this Finnish meaning,' sure I'd have a problem with that, but this is only happening in some kind of weird cartoon version of reality. Whatever people say, 'judicial activists' don't perceive themselves to be ignoring the language of statutes and substituting their own policy preferences.

Now it would not be surprising to me that if the winning party had argued that the Finnish statute was similar, and the other had said that it was not similar, while the court might have adopted the first rationale above, the losing side might think it had adopted the second. That doesn't mean it did, though.

To come to the actual issue: what authority do you have for the proposition that "unusual" means "unusual in the United States"? Or "unusual in those states that approved the bill of rights"? The authors of the bill of rights (and other founding documents) were children of the Enlightenment, and took, I think one can argue, a more universalist and less parochial view of the inalienable rights with which all men had been endowed by their Creator. They wrote in broad language -- for the reasons explaned in M'Cullough v. Maryland -- and, as I noted before, it is our failure, not that of the document, that we as a society are only slowly evolving towards acceptance of the full import of the Enlightenment principles that were laid down for us.

I don't expect you to agree, but if you want to say that the Constitution absolutely precludes my view on this point, I'm going to have to see some text.
5.28.2005 1:56pm
CharleyCarp (mail):
Zach, if we were talking about setting binding precedent, I'd say that you could go straight to Article III, and say that the judicial power is vested in one supreme court, thus precluding the supreme court of Canada from the power to issue binding opinions.* No one is saying that foreign courts have the power to set binding precedent on the meaning of US laws.


* States may, and most have, adopt statutes that make foreign decisions binding in specific disputes. With some defenses and exceptions, of course.
5.28.2005 2:01pm
Zach (mail):
Charley -- I'd accept that reasoning.

But the decisions themselves (made by the US courts) are binding, correct? So how would one deal with, say, a Supreme Court decision which cited foreign law on a tricky point that subsequently became the crucial point in a new case? Would you be free to ignore the citation as being purely ceremonial and nonbinding? Does the foreign decision become binding precedent when cited by the US court? What if the foreign case were subsequently overturned in the country of origin?
5.28.2005 2:15pm
Consigliere (mail):
Charley,

I'm not saying that foreign law is binding on a US court. I'm saying that a US court can look at how a Finnish court interpreted a Finnish statute and say, 'hey, that's a fair view of what these terms mean, and faced with a similar provision in my statute, I think I'd apply the same reasoning.


The law mandates that the plain meaning of statutory terms is utilzed. When in doubt use a dictionary, not a Finnish interpretation.
5.28.2005 2:27pm
Simon:
CharleyCarp:

Statutory interpretation isn't quite the same thing as constitutional interpretation, but in both cases, all we are trying to do is to get inside the heads of the writers of a provision to see what they had in mind. It is unlikely that a Finnish source could tell us what an American legislature had in mind when the American legislature passed an American statute, and so citing the Finnish source is irrelevant to that inquiry. It would be irrelevant even in the unlikely circumstance that the Finnish legislature was considering a similar statute because the heads we would be trying to get inside would be different. What Finnish legislatures thought a word meant doesn't tell us what American legislators thought the same word meant.

Similarly, but more basically, a Finnish source is unlikely to tell us much about what 18th Century Americans had in mind when they penned words such as cruel and unusual. Whatever cruel and unusual meant to the people who wrote it, we can be quite sure they did not have in mind the opinions of Finns from over 200 years in their future. This would be the case even if Finland and the US had identical forms of government, with identical constitutiuons -- neither of which, of course, are true.

The reason this is important is because the US Constitution, like any document, is more than just a set of words. It is a set of words that has been ratified and accepted by a polity as one under which it consents to be governed. It's that consent that gives the Constitution its authority. Without that consent, the Constitution would be simply another form of tyranny. When you reach outside the universe of that which was consented to, you are in effect imposing government without consent. That is directly contrary to the most fundamental of American political theories. Government legitimacy comes from the consent of the governed.

A judge who disattaches the constitution from the traditions in which it was written is simply abandoning any pretence at constitutional interpretation, and is simply making it up from whole cloth according to his whims. That's the problem, and that is why it is seen as illegitimate. The judges who do this have forgotten that their power comes from the consent of the people -- specifically, from Americans, and not anybody else.

You put this as a rather simple question that betrays the difference of our opinions. You ask what says that a judge can ignore persuasive authority. The answer is that foreign sources, especially foreign sources not within the comprehension of the founders, are not persuasive authority on US constitutional law.
5.28.2005 3:15pm
CharleyCarp (mail):
Zach:

A US Sup Ct interpretation of a US statute will be binding. No matter how the Court got to its holding. It would make no difference at all if the foreign court later changes its mind.

Cons:

My dictionary defines "unusual" as not usual or common; strange; rare; exceptional. Connecticut just had its first execution in 40+ years. Sounds pretty rare to me. I don't think that's what the Eighth Amendment means either, but I'm not the one looking for answers in the dictionary. I guess I'd need to get a dictionary that defines words together, like 'just compensation' and 'due process.' The disputes are not about the meanings of the individual words, they are about the meanings of the limitations on the power of the state to encroach upon the individual.
5.28.2005 3:18pm
CharleyCarp (mail):
You put this as a rather simple question that betrays the difference of our opinions. You ask what says that a judge can ignore persuasive authority. The answer is that foreign sources, especially foreign sources not within the comprehension of the founders, are not persuasive authority on US constitutional law.

How, Simon, do you know this? I know you believe it. I don't believe it. How do I know that you are not just substituting your whim for the intention of the drafters? I don't see any text that says 'you may not look at foreign law' and frankly think the founders would have been surprised at that thought.

What can we know about "the comprehension of the founders"? I see that they wrote in very broad strokes, using words like "just." What is justice?

Do you use 1789 values for a takings claim, and if not, aren't you failing to get inside the heads of the drafters? Or do you think they intended the concept of "justice" to be more fluid, changing as contexts and circumstances require? Why does 'unusual' not do so as well?

Who's to say that a Japanese court, looking at similar language, can't come to a formulation that a US judge would read and say 'hey, I think that's a fair articulation of what the founders were going for'?
5.28.2005 3:31pm
Robert Schwartz (mail):
CharleyCarp wrote: "What's really the matter with knowing what other countries think?"

The answer is nothing. But he misses the real question, which is who cares? I certainly don't, and I doubt that many Americans do.

I think that Orin's culture war thesis is more or less correct.

Perhaps a true story will illustrate.

A few years ago I was standing in line at Zabar's, a well known New York Deli. The woman in line in back of me was smoking a cigarette.

I am alergic to cigarette smoke because I am an ex-smoker.
Seeking to avoid the headache that the smoke would bring I
directed the lady's attention to the no-smoking sign above the counter (this was before city ordinaces outlawed smoking) and requested that she desist from her cigarette.

She declined and in doing so she said: "In Europe, where everybody is more sophisticated, no one objects to my smoking."
5.28.2005 4:23pm
Simon:
CharleyCorp:

It's true that no judge can ever say with certainty that they know what the founders had in mind. We have a pretty good idea what sources the founders used and relied upon, but sure, we can't know for certain. However, I think we can say with a high degree of certainty that they were not familiar with Japanese court decisions from the early 21st century. Unless, of course, they had access to a time machine.

If your intent is simply to unrestrain judges from any pretence then their interpretations are grounded in any American understandings, then frankly, I see little point in citing to a foreign source or for that matter, any source. If persuasive authority for interpreting a constitutional provision simply means arriving at whatever results the judge's whims take him, then why bother going through the steps of citing authority? Why not simply say "hey, this looks like a good idea, I'm going with that."

That would at least side-step the basic problem -- which is the problem of turning the constitution on its head. Recall that the constitution is a document of limited powers. Before the federal government can do anything it has to find its jurisdiction to do it. Before any federal court can hear a case, it must find its jurisdiction. So the question is not as you put it what in the Constitution says that a judge may not rely on foreign decisions, the question is what in the Constitution says that a judge may rely on foreign decisions? I don't find that anywhere except in the very limited circumstances where the Constitution refers to the law of nations. Otherwise the document seems to me to be written with the assumption that this country will be self-governing.

There are, of course, all kinds of examples of sloppy thinking on the bench. Taking a survey of foreign decisions strikes me as a poor way to reason a decision. As you say, the US Supreme Court's decision are binding no matter how they reach their holding. The question is whether the Court can reach a holding applying recognized US legal sources. If the only way a Justice can reach his desired holding is by an excursion through foreign legal systems, then it is probably as good an indication as any that perhaps the opinion isn't very strong and the Court should wait for further guidance before going out on such a legal limb.

That would have the effect of leaving in place existing US Constitutional interpretations. I think that is something that we have to remember here. We aren't talking about abstract issues that might be of interest to a scholar writing a law review article. We are talking about concrete cases of constitutional law affecting the basic functioning of domestic government. Courts don't issue advisory opinions, their cases always have practical consequences. Take the death penalty (the example we have been using). If the reasoning of a Finnish court is used to determine that the death penalty is cruel and unusual, it changes US law. When did Americans consent to Finnish law as the standard?
5.28.2005 4:28pm
CharleyCarp (mail):
If the reasoning of a Finnish court is used to determine that the death penalty is cruel and unusual, it changes US law.[*] When did Americans consent to Finnish law as the standard?

1789. And 1868.

* I don't agree. US law is not changed by our evolving understanding of it. State statutes against racial intermarriage were made constitutionally impermissible in 1868. It just took a century to realize it. If the federal government wants my 4500 square feet of Maryland, they have to pay me what the county says it's worth today, not what it was worth in 1789. What is "just" changes over time. Why does not what is "usual"? And why does not "usualness" embrace what happens outside the boundaries of the US? There's nothing about the limited nature of federal power, or limited jurisdiction of federal courts that in any way directs this.

I understand that the notion of restraints on governmental power over the individual is pretty unpopular in many quarters. That governments don't like being told they can't impose their will on people. That doesn't mean, though, that there is constitutional sanction for the idea that an individual can't point to the rights enjoyed by a similarly situated individual in another polity and say 'hey, I've got at least what he has, with regard to protection from oppression by the state.' And fortunately for we descendants of our Enlightened founders, the truth is that we basically do. We have freedoms that we have yet to fully realized.

You folks beholden to the notion of unrestrained -- or, more fairly, minimally restrained governmental power -- seem to want to shut the American up who would make this argument. Not I.
5.28.2005 4:55pm
Simon:
"1789 and 1868"

What!? You think the Bill of Rights and the 14th Amendment makes the US Constitution subordinate to foreign law? Do you have a source for that extraordinary proposition?

The limits on the power of the federal government over US citizens has nothing to do with foreign law. The limit is the extent to which US citizens decided to cede their inherently unlimited jurisdiction over themselves to their government. The limit nowhere references Finland, or any other foreign country. Where they drew a line tells us nothing about where we drew it.
5.28.2005 6:23pm
Jimbo (mail):
Charley (re 5th amendment):

It's not only "just". It's "just compensation." "Compensation" contains within it the concept of equivalent value for the property. Accordingly, your notion that "just" changes over time because the value of your property does so is, well, not particularly persuasive. There may be many arguments as to why the concept of "cruel and unusual" (in an 8th amendment arena) should evolve over time, but yours is not a good one.
5.28.2005 11:58pm
CharleyCarp (mail):
Jimbo, a fine assertion, but I don't see it at all. Compensation merely means payment. It's the word "just" that requires the compensation to be fair.

Even if you're right, you've still dodged the actual question, though. Suppose my 4500 square feet of Maryland was worth $.50 in 1789. Thus, at the time the bill of rights was ratified, "just compensation" meant $.50, and this amount was exactly what the ratifiers intended at the time. Why does "just compensation" not mean $.50 for the rest of all time?

You know the answer. It is because what compensation is "just" changes over time. To respond to your point, again, $.50 would be "compensation" for the rest of all time, but would not be "just," but accepting your assertion arguendo: what is "compensation" changes over time, because the ratifiers intended, in using a term whose meaning would be measured against the context as of the time of the action, that it do so.

Simon, I never said "subordinate," or meant to imply it. I mean foreign law is not-absolutely-necessarily-irrelevant. And that when the drafters wrote in broad brushes, they opened the door to comparative analysis.

I'm interested to know, by the way, if you think a US court may cite the Bible in the same senses I think that it may cite a foreign case. If so, when did the citizenry agree to allow judges to do this? Also, when did the people of Virginia agree that their state courts could cite Maryland cases in interpreting Virginia statutes and constitutional provisions? When did New York voters agree that decisions of the courts of New Jersey, for God's sake, could be cited? Or to make it fairer approximation of using foreign law in the US, and use your vernacular, when did the people of Connecticut agree to subordinate themselves to judges from New Mexico?
5.29.2005 9:01am
Ken Hahn (mail):
I'm not a lawyer and I understand that judges must seek information and wisdom from any available source, but....
The citation of contempory foreign law is simply a judicial trick to make the law whatever the judge wants it to be. Citing British or Canadian law opens the door to basing legal remedies on the decrees of Castro or Kim Jong-il.
In my view, Professor Kelly and his supporters do not wish to be limited by the U. S. Constitution or that messy Congress thing. If they can find support in the tribal traditions of the Navajo or the Sharia, then they can betray the unquestioned intent of the framers or the easily understood conent of statute law.
Professor Kelly believes the law is in shades of gray. God help the American people if this is true. If understanding of the law is not as black and white as we can make, no one will know what is forbidden or what is allowed. Down that path is tyranny.
5.29.2005 9:12am
Simon:
CharleyCorp: You ask: "I'm interested to know, by the way, if you think a US court may cite the Bible in the same senses I think that it may cite a foreign case. If so, when did the citizenry agree to allow judges to do this?"

I think as Orin pointed out that it would be inappropriate for a judge to rely on religious verses in an opinion deciding US constitutional law. In the same spirit, I am curious to know what you would think if a court relied on the opinions of, say, Saudi courts to rule against gay rights. Suppose Lawrence had gone the other way, and the Supreme Court said in its opinion that it's holding that sodomy was legal was bolstered by the many legal systems around the world that also criminalize homosexual conduct. Would you be as enthusiastic about using foreign law to decide the US Constitution then?

On out of state precedent in domestic cases, the answer is "it depends." Many US state statutes are modeled on statutes in other jurisdictions. In such a case, it can be reasonably appropriate to examine the source the statute at issue was modeled on. Similarly, I have no problem with examining foreign legal sources that US Constitutional provisions were modeled on. In Constitutional matters, it's relatively rare in my experience for state supreme courts to expressly rely on the construction of other states' constitutions. When they do, it is usually because the provision at issue was modeled on another state's constitution, or on the federal constitution. Looking at the other state can in that limited circumstance shed light on what the framers of their own constitution were adopting. In that limited situation, it can be appropriate.

That is NOT the same thing as construing the US Constitution according to legal systems completely unrelated to the US legal tradition and separated from it by over 200 years of separate independence. Those aren't things that the US Constitution was based upon, and therefore they shed no light on its construction.

The basic issue comes down to whether you think the judge's role is to seek to interpret the law before him, or whether you think judges are free to use any source they see fit to arrive politically at whatever decision they want. You seem to fall into the latter category, but I suspect your support rather depends on whether or not you happen to agree with the conclusion. So please, what if the Court began deciding against gay rights, or the rights of women based on foreign legal decisions? What if they started citing the Bible as persuasive authority? At what point would you object?
5.29.2005 10:00am
Simon:
CharleyCorp: One other thought I'd like clarification on. Are you defending the use of foreign law purely as dictum, or as part of the holding? My objection is obviously to the citing of irrelevant law as part of the holding.

I have less objections to dictum, except that I think the inclusion of such irrelevancies simply creates a muddled opinion and is likely to confuse lawyers into thinking that irrelevancies are relevant. Opinions in my view shouldn't be confused with law review articles. If a judge wants to turn an opinion into a wide-ranging muse on comparative law, then they should use another medium that couldn't be mistaken for binding law.
5.29.2005 10:07am
Jimbo (mail):
I'm sorry Charley, I don't agree.

"Compensation" does not simply mean "payment." It means, according to my handy-dandy dictionary (and common parlance) "suitable payment in return for loss, damage, etc". "Just" simply means that the process of arriving at that figure has to be fair. So why is 50 cents for the land not "just compensation" for all time? Because (presuming the value of the land has risen) paying 50 cents to a landowner would not "compensate" him for its loss.

This doesn't mean that the meaning of the word "compensation" has changed over time, it means that the value of the item has changed. Thus, what is required to "compensate" has also changed.

Again, the difference between this and the 8th amendment context should be obvious. "Cruel and unusual" COULD be an absolute term (what was C&U in 1789) or it COULD be a relative term (which is how the USSC has interpreted it since, well, I guess 1901ish or something). "Compensation", otoh, can ONLY refer to the present value of the item being taken (value being, of course, a relative construct). But all this can only be true if words are understood to have meaning.
5.29.2005 12:22pm
CharleyCarp (mail):
Simon, my views on this subject are not at all results driven, and nothing I've written gives you any reason on earth to suspect that they are. That's bigotry.

To answer your question, I don't have any problem with a court looking at foreign law that goes the other way, if that's how the chips fall.

If someone [it would be the government] was arguing -- for whatever reason -- that the position of the Saudi courts on homosexuality was relevant, I would expect the US court to (a) decide the relevance question, and if relevant (b) consider and discuss the Saudi position. Why would it be relevant? Suppose some state wanted to reimpose the Massachusetts Bay code of 1648. Suppose then that a person was convicted, and wanted to argue that the death penalty for consensual sodomy was "unusual." And suppose further that the state wanted to show that execution for sodomy was in fact common, citing, inter alia, Saudi law. (I'm speaking hypothetically, not having looked at Saudi law on the subject). I wouldn't agree with a decision saying that the death penalty for sodomy is therefore OK under the 8th Amd. But it would be colorably appropriate, in my view, for a US court to look at this and, having looked, to tell us what the result was. Even if it goes the other way.

Now this is really stating Saudi law as a fact, ie evidence regarding the question of "usualness," not adopting it. But then, that's all that's really at issue here anyway.

As for states, that's why I included Connecticut courts following New Mexico decisions. The constitution and laws of the former did not derive from the latter. Indeed, there is an extent to which some laws of these states have distinct origins (well, separated since Roman times). Yet it would be perfectly fine for a Connecticut court to say 'New Mexico has faced a similar issue, albeit with different statutory language. They resolved it in the following manner. __X_ This fits our statutory scheme because _Y__, even though there are some non-material differences between their statute and ours, such as _Z__.' I don't think the terms 'subordination' or 'adoption' have any business being used in connection with this kind of line. Feel free to disagree about the Y, or the materiality of Z, but I think wrt the general concept, you've got nothing. Substitute Japan for NM, and you get to the same result.

Unless you want to have a "war." In which case, nearly anything can be a causus belli.
5.29.2005 12:42pm
Simon:
CharleyCorp: I see no need here for accusations of either bigotry, or wanting "wars." Please leave that kind of language out.

On foreign law I am glad to see at least that you concede that relevancy is the threshold. The problem is that I can't see how it can ever be met in the kinds of constitutional law issues we are talking about when you are discussing law derived from radically different sources from the US Constitition. Just because the substantive issue different constitutions deal with is similar doesn't make the constitutional analysis parallel. To take an obvious reason why I'd point out that the underlying theory behind the US Constitution is diametrically different from many other constitutions. The US Constitution is a negation of government power, not a positive grant of rights. That kind of changes the analysis.

On Connecticutt and Rhode Island it would again depend on the nature of the statute or constitutional provision being analyzed. For example, it might be appropriate for Rhode Island to look at how New Mexico handled a UCC issue. It might similarly be relevant for Rhode Island to look at how Italy handled a case arising under an international convention (say, the CISG). In both cases you'd be looking at how a sovereign implemented a body of law with origins external to the sovereign and which is intended to be applied uniformly across sovereignties. Or equally, it might be relevant to look to other constitutions that have adopted provisions that have become models. For example, Alaska looking at California privacy law.

In each of these cases, you would be looking preexisting materials that formed part of the same common understanding that existed prior to the adoption of the later domestic law. In other words, you are trying to arrive at original intent.

Not so when you try to reinterpret a 1789 constitutional provision by looking at 21st century foreign decisions. The latter sheds no light on original intent.

As an aside also I don't think that the cruel and unusual clause was ever intended to determine which crimes can be punished by the death penalty. It's more deciding which punishments regardless of underlying crime can be used. Certain punishments would be regarded as cruel and unusual regardless of whether they are imposed for murder or tresspass.

Secondly, and here is where I think you make the mistake. Cruel and unusual could mean interpreted only in terms of what was cruel and unusual in 1789. Or it could mean cruel and unusual according to comtemporary norms. However, the latter interpretation doesn't mean what is considered cruel and unusual according to a straw poll of the entire world. The US Constitution is first and foremost a document of self government. A punishment is cruel and unusual if it offends American notions of what is cruel and unusual. Not notions derived from anywhere else.
5.29.2005 1:37pm
Mitch in AZ (mail):
My comment - the third one to be posted here - was one that was deleted. It was deemed "neither civil nor respectful". While it is certainly Kerr's option to delete it, I submit that suggesting that law students at Creighton demand Kelly's return to undergrad school to study and pass Logic 101 before inflicting his illogic upon them, does not fall into Kerr's category of "neither civil nor respectful". Furthermore, Kelly earns respect when he respects his students, Scalia, Thomas and others who think the way they do. Kelly is totally disrespectful of their views.
5.29.2005 2:28pm
Noel (www):
Perhaps Justice Thomas simply holds the quaint notion that he works for We, the American people and derives his just powers from the Consent of the Governed as expressed through their Constitution and their laws. This is a commonplace American perspective and should be investigated by the truly intellectually curious.

The problem with foreign law cites are threefold:

1.) No American ever consented to be ruled by these laws nor had a voice in their making.
2.) Foreign law-makers may even come to demand their right to legislate for Americans.
3.) This seems like the ultimate form of "forum shopping"; Can't find an American statute to back your favorite theory? Somewhere, someone has passed your law!

In Roper, for example, not only did the Court remove the right to chose from the 50 states, but also arrogated unto themselves the elected branches' (and therefore, the peoples') power to ratify treaties. I don't want my Constitution "harmonized" with other countries' laws and find no authority for the Court to pursue such a radical course.
5.29.2005 8:15pm
TomCS (mail):
Sorry in advance if this appears off topic: it's my first attempt to contribute to this site. IANAL, or a US citizen or resident, but have worked in the US, including on international trade issues.

This discussion worries me. First, I cannot see what the real problem is. No one is suggesting applying foreign laws in the US, and citing the opinions of other jurists in the course of formulating an argument or a judgment (I believe the well-established term is obiter dicta) does not make them law. I cannot see either that what is perfectly reasonable where the law and the jurisprudence from outside his particular jurisdiction is sufficiently parallel to be of relevance to a judge (cf the Alaska/New Mexico suggestion above) becomes automatically improper at a higher level, or even at the level of a constitutional court (though the US Supreme Court chooses to handle many issues which fall short of the constitutional, rather than of simply resolving issues of significant legal uncertainty). The test must be whether the reference to more remote jurisprudence is relevant, and that can only be judged case to case.

In fact what some of the posters seem to be suggesting is juridical plagiarism: if a widely read judge interested in the development of jurisprudence outside his/her direct jurisdiction sees something in argument elsewhere which he/she considers relevant, the preferred path is to pretend that the conclusion drawn is original and from first principles.

My second worry is the suggestion is that many posters seem to believe that, judicially, the US can live in its own bubble, without thought for or awareness of the rest of the world, and in particular of its presumed "allies", and especially those who derive from a common tradition and in many cases share a common legal and jurisprudential vocabulary. This is no more true than in terms of security. There are wide areas of private commercial law where this is obviously the case.

There are also areas of developing law (some of it yet to be legislated in the US to the extent that it has been in possibly parallel jurisdictions, such as in terms of stemcell research, where it is on the whole unlikely that Congress will produce pellucid law with no requirement for judicial interpretation) where it would seem self defeating to refuse US judges access to the thinking of their legal peers elsewhere and the right to attribute this insight honestly where relevant.

That in no way stops other justices from preferring to peruse the Federalist Papers to extrapolate principles to apply to the issues currently before them, but this discussion seems to assume that the one excludes the other. Why?
5.29.2005 11:03pm
SupremacyClaus (mail):
I see no difference between Scalia and Breyer. Scalia quotes Blackstone, a foreign, patriot prosecuting, Stamp Act voting Tory, a sworn enemy of our beleaguered Nation. He did so in his appalling free all the prisoners decision, Blakely.

No lawyer should be allowed to sit on the Supreme Court. Remove all lawyers from the bench. They are in utter insurrection against Article I Section I. Whatever the crime is called that was committed by the soldiers firing cannon at Fort Sumter, they are committing everyday. Send Federal Marshalls to forcibly throw them from the building (ground floor) and throw their stuff on the curb. Take those legal dyslexic clerks with them. Replace them with random names from the N. Va. jury pool for a real upgrade in judgment.

Orin: I note you tolerate no uncivil speech. I am curious about this Blog site. Did you sign a Hold Harmless clause in the end user agreement? Is that why censorship is necessary?

Many blog provider agreements have that clause in their contracts of adhesion. That is procedural unconscionability per se. Blogging is thus impossible for anyone who is not judgment proof. Either many law academics are judgment proof, badly need a raise. Or, they are victims of lawyer chicanery.
5.30.2005 1:19am
Noel (www):
TomCS,

Let's put the shoe on the other foot; if a Belgian court said "Ya know, we've noticed that the American Constitution mentions capital punishment several times and many American states practice it. Therefore, consistent with the Belgian Constitution, we are bringing back the Death Penalty. And abolishing the monarchy, too--based on our understanding of Belgian Law, of course."

Would Belgians accept such a thing? They shouldn't. I don't.

I think it's possible not to live in a bubble while still maintaining national sovereignty. The commercial laws you mention are fine if arrived at properly. And British law is a special case, our own having been derived from it.

Citing foreign laws are usually a way to arrive at a leftist outcome that is otherwise unsupported by the Constitution, the legislatures or the people.

That's the problem.
5.30.2005 3:36am
SupremacyClaus (mail):
Restoration England. A good model. Make the Justices wear wigs. Appellate advocacy in Latin. Address them as, Your Worship. The English oppose heat. Too expensive. Turn off the heat.

The entire lawyer profession is a leftist enterprise, for the redistribution of income. To themselves.
5.30.2005 10:22am
RStutes (mail):
The controversy over citing foreign sources of law came back to me as I read, on Friday, and opinion by soon-to-be 5th Circuit Justice Priscilla Owen. On a decidedly non-sexy legal topic - the right of an insurer to get reimbursement for a settlement it pays when it is subsequently determined that the claim was not covered - Justice Owen wrote for the Texas Supreme Court, and cited extensively to a California Supreme Court case. She did so, I presume, because she found the analysis sound and persuasive. Of course the California Supreme Court's opinion is not binding on the Texas Supreme Court, but it assisted this court in deciding a legal issue. I am confounded as to why a similarly non-binding analysis would be rejected as an improper reference, merely because it was made by a court in a foreign country. (Why is it proper for courts to cite articles in law reviews, whether they are written by law professors, practitioners, or law students??)

That said, I find the analysis of the motivations of Scalia and Thomas unconvincing. I think that the political motivations of those on the right who are so critical of such citations to be in line with the criticism of the UN and the World Court. The underlying premise: the US is better than every other country (I'm willing to agree) so it is illegitimate for us to submit to rules that bind all countries (not willing to agree). This is the same mindset that rejects the Geneva Conventions as nonbinding, and is not bothered because all analysis is begun with the irrebuttable presumption that "we're the good guys." Not surprisingly, if you presume that the actor is motivated by benign intent, you are willing to let the actor work outside of any restrictions.
5.30.2005 12:25pm
SupremacyClaus (mail):
It is absolutely not proper to cite Restatements, law review articles, hornbooks, opinions by out of state cult cappi, nor any source other than legislation.

This is out of control lawyer insurrection against Article I Section I. What about the wisdom of your Aunt Tillie? Cite that to impose heinous Judge personal bias on the public.

Such alien citation should be declared reversible error per se in legislation. These judges think they are George III.
5.30.2005 12:35pm
SupremacyClaus (mail):
I can always find literature to support my previously held belief. If a judge does, that should be an impeachable offense.

The only outside text permitted a Judge is statute.

Please, note that most of the references in the above site are foreign, and British, only more modern and better supported by evidence than the quotes of Scalia.
5.30.2005 3:25pm
John Primmer (mail):
I apologize if my comment duplicates those of previous commenters. Reference to foreign law may be defensible, though I've yet to hear a persuasive argument in its favor. But Professor Kelley does not attempt to persuade. Instead he begins with the premise that such reference is a good thing, and requires those who will not do so to overcome his false premise. His insistence that Justice Thomas' refusal is due to his lack of intellectual curiosity is not only unsupported by example, it falls on the same plane as Sen. Reid's description of Justice Thomas as an "embarassment." Arrogant and presumptively racist.

It's not clear how to evaluate his distinction of Scalia's reasons for refusing to invoke foreign law. Irrelevance is of course one explanation. But given the lack of discussion by either man, why would the same reason not also apply to Justice Thomas. A hidden message may be to subtly repeat the racist charge against Thomas. Kelly seems to be saying, "Both of these Justices ignore foreign law, but at least Scalia is able to think about it." Kelly does not appear to be much of a thinker himself.
5.30.2005 3:59pm
Wince and Nod (mail) (www):
It's been my experience that when someone claims his opponents aren't smart (intellectual curiousity is a component of intellegence) or when someone begins to psychoanalyze his opponents, that someone has nothing more useful to say. Based on the rest of his blog I would say he has many useful things to say on many subjects. Perhaps this subject no longer interests him.... By which you can tell that I have nothing more useful to say.

Yours,
Wince
5.31.2005 8:14pm