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Relevance of International Law:

The 10 Commandments cases also nicely illustrate the fundamental problem with the Supreme Court's "now you see it, now you don't" approach to looking to international sources for guidance on interpreting the U.S. Constitution. If the Court is going to engage in a free-range analysis of policy, history, psychology, etc., about the accommodation of religion in society and the public sphere, wouldn't the development and experience of Europe be at least as relevant here as in the other cases where the Court has looked to those sources for guidance? I can't see of any reason why world experience on interpreting the Establishment Clause would be any less relevant than for interpreting, say, the Cruel and Unusual Punishment Clause in the context of the juvenile death penalty. Furthermore, my impression is that public displays of religion are much more permissible in Europe, for instance, than what would be permitted here (not to mention Israel and Islamic societies). Maybe someone can explain to me why it would be relevant in interpreting one clause and not the other because I can't see the difference.

Leaving aside all of the intellectual arguments for whether the Court should or should not rely on international law for constitutional guidance, it is hard to escape the conclusion that the Court's periodic reliance on world legal opinion is purely strategic rather than sincere, perhaps to dress up the Court's personal predilections in the guise of legal authority. I am not aware of any principle that the Court has articulated which would permit litigants or the public to predict when international law or practice would be relevant to the interpretation of the U.S. Constitution. Nor am I aware of any scholar who has defended reliance on international sources who has tried to distinguish when international law is relevant to constitutional interpretation versus when it is not.

Update:

A reader has offered the amendment that the term "foreign law" rather than "international law" is the more accurate term to use here. I think the context makes clear what I had in mind, but if not, I offer this amendment as well.

roysol (mail):
I don't know about all of Europe regarding religious expression, but France was surely less tolerant when they decided that muslims could not wear their traditional dress to school.

I had a completely different thought regarding the Ten Comandments. They were not written in the US, therefore they have zero relevance, according to those who promote the concept of strict adherence to domestic law.
6.29.2005 1:05pm
Marc Lowenstein:
"I can't see of any reason why world experience on interpreting the Establishment Clause would be any less relevant than for interpreting, say, the Cruel and Unusual Punishment Clause in the context of the juvenile death penalty..."

I think it's because of the meaning of the word 'unusual'. It may be inappropriate (as I think it is), but the semantic and logical path they follow is clear.
6.29.2005 1:16pm
T-Fresh:
Is it possible that the experiences of the global community would be more relevant to an issue that concerns basic human rights? If capital punishment is viewed as a human rights issue instead of a public policy issue, then perhaps the international community's beliefs concerning fundamental human rights could matter. However, the extent of the establishment clause doctrine is purely an issue of public policy -- atleast for this court it is, as they seem to have forgotten their role as interpreters of the Constitution as a contract between the States -- and, therefore, the decisions of other countries should only matter insofar as they shed light on the potential effects of various policy decisions.
6.29.2005 1:18pm
A Blogger:
T-Fresh,

What is the constitutional basis for your "basic human rights" versus ""public policy" distinction? And how would you classify First Amendment freedoms?
6.29.2005 1:21pm
Cheburashka (mail):
Lowenstein's right. Maybe I'm missing a few, but my impression is they've only used international comparisons in the context of cruel &unusual punishment and in Lawrence. The latter case is an example of lawlessness in any event.
6.29.2005 1:35pm
Apu (mail):
There's a big distrinction between these two situations -- in one, there's close to a world-wide consensus prohbiting the execution of people for crimes committed as a juvenile; there's no similar consensus regarding government involvement in religion. On the one hand, there are lots of countries actively involved in supporting a particular sect (the UK, Isreal, Italy, Japan -- in various ways, but still); on the other, there are many resolutely secular nations (France, China, Germany). So, why can't the explanation be, SCOTUS may consider international law when it is firmly established, but not otherwise?
6.29.2005 1:37pm
pug (mail):
Why does the Court need consistency when it looks to non-binding secondary sources? And why would the Court need to invoke international law to dress up its "personal predilections"? The Court has never claimed foreign law is binding, so if it really did want to mask what it was doing, why would international law be a superior way to do it as opposed to citing any other secondary source?
6.29.2005 1:42pm
Matt Tievsky (mail):
Todd, there were some allusions to international experience in two of the Zelman v. Simmons-Harris dissents. Stevens briefly expressed his fear that vouchers will put us on the path towards the religious division present in Northern Ireland, the Balkans, and the Middle East. Breyer took a paragraph to explain why America's religious diversity renders support for religious schools more dangerous here than in Great Britain or France.
6.29.2005 1:42pm
T-Fresh:
Perhaps the 9th amendment. The rights "retained by the people" could be seen as those rights which we can agree are fundamental to humanity, and fundamental to the concept of personhood. As no sane individual would contest the fact that the international community has as much ability, and as much right, as we do to discuss and and answer this question, perhaps their opinion on the subject is at least worth mentioning. I don't want to over-emphasize the weight that should be given to the opinions of the international community, but on such an issue their thoughts probably at least deserve recognition.
6.29.2005 1:44pm
Al Maviva (mail):
Pug, I don't know why comparison to the whole world is relevant. Once upon a time, there was a dominant political theory that controlled two thirds of the known world, to a greater or lesser degree. They were called "communists." They had a bad habit of executing people whose politics did not conform to centrally dictated doctrine. Why should their opinion matter? If an international headcount is the measure of right and wrong, couldn't Justice Kennedy have written: "it is the emerging consensus of world opinion that the brutal torture, starvation and murder of millions is just hunky-dory, therefore it's okay under U.S. constitutional standards"?

I'm of the mindset that right, wrong, and the proper interpretation of the Constitution are a matter for Americans to decide, not Belgian and Zimbabwean courts.
6.29.2005 1:52pm
rsimmons (mail):
"I had a completely different thought regarding the Ten Comandments. They were not written in the US, therefore they have zero relevance, according to those who promote the concept of strict adherence to domestic law."

This is a bit of a non sequitur. If you are referring to Justices like Scalia as "those who promote the concept of strict adherence to domestic law," it does not follow that because something wasn't written in the US, it has zero relevence in Constitutional interpretation. Blackstone, for example, was written in England, as was the Magna Carta.

More generally, I think the Prof. Zywicki is absolutely correct about the true rational for using foreign law. This of course has been pointed out by a number of commetators and even Scalia himself in his Lawrence dissent. Foreign law provides a wide range of alternatives from which to cherry-pick those that support the desired result, while omitting those that do not.
6.29.2005 1:58pm
Michael B (mail):
"... it is hard to escape the conclusion that the Court's periodic reliance on world legal opinion is purely strategic rather than sincere ..."

Yes, aka taqqiya. However, attempting to take this into account is fraught with sundry pitfalls and difficulties. Compared to this arena, "the law" can be a welcome retreat.
6.29.2005 2:02pm
rsimmons (mail):
"Nor am I aware of any scholar who has defended reliance on international sources who has tried to distinguish when international law is relevant to constitutional interpretation versus when it is not."

I think I may have found one. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=700176

The general prescription offered in this piece is that the Court can and should use foreign law when "reasonableness" is at issue, particularly in 8th Amendment case. However, as illustrated in the rather weak use in Lawrence, it should not be used in Substantive Due Process cases.
6.29.2005 2:13pm
Justin (mail):
Here the comparison is completely inapt. Every major European country *has* an established religion, even if *politically* they are secular. Here it is the exact opposite...we are politically a Christian (and in some respects Judeo-Christian) nation, but we are technically without an established religion. Thus, Danish uses of religious symbolism can't tell us anything about whether or not religious symbols violate an ESTABLISHMENT of religion.

This of course brings up the interesting question of chicken/egg. Not only here but in Soviet Russia, the official policy of nonreligion in government has led to religious revivals that have strands of fundamentalism (though no comparison to fundamentalist Wahabbism, despite my fellow liberals' love of the parralel). Does nonestablishment causes have a pro-religious social effect? If so, aren't decisions like this GOOD for conservative christianity socially (if not politically)?
6.29.2005 2:24pm
Clyde Mnestra:
"Nor am I aware of any scholar who has defended reliance on international sources who has tried to distinguish when international law is relevant to constitutional interpretation versus when it is not."

There are a number of published articles and SSRN papers that do this very thing, for example, focusing on whether foreign affairs or international law is textually or structurally implicated (e.g., declaring war). A special section in one issue of the American Journal of International Law in Jan. 2004 contained several articles making this type of distinction, if I recall correctly. So, unless you mean something very specialized by "scholar" or "tried," there's a lot out there. The literature also thoroughly vets objections to the invocation of foreign and international law, albeit without the reference to the Ten Commandments case (which is an interesting and provocative comparison, but different in kind).

Respectfully, this challenge -- which seems different in character than a friendly question as to whether any relevant work has been done -- comes across as laziness. Should other scholars or pundits, maybe experts in international law, blithely report that they're unaware of attempts to apply the law of interstate commerce to shipments of wine?
6.29.2005 2:35pm
Bruce Moldovan (mail) (www):
In his dissent in McCreary County v. ACLU of Kentucky, Justice Scalia seems to feel it is important, or at least relevant, that when he was in Europe on Septemeber 11, 2001, a "judge from a European country sadly observed `How I wish that the Head of State of my country, at a similar time of national tragedy
and distress, could conclude his address 'God bless ______.' It is of course absolutely forbidden."

Suddenly Justice Scalia seems to feel it actually matters what judges from foreign countries (let alone European ones!) think about their country's laws and jurisprudence. Why is Scalia citing a foreign judge? Granted it's not a judicial opinion, but he believes this "Rest of World" opinion matters enough to be quoted in a U.S. Supreme Court decision. Why?

After Riach, I'm not surprised by Scalia's wishwashyness.
6.29.2005 3:05pm
Clayton E. Cramer (mail) (www):
"Granted it's not a judicial opinion, but he believes this "Rest of World" opinion matters enough to be quoted in a U.S. Supreme Court decision. Why?"

To emphasize the absurdity of letting foreign court opinions decide what our Constitution means? :-)

Seriously, Scalia's point was not using some foreign judge's off-hand remarks to defend a particular decision. Zywicki's point remains strong: if foreign opinion is a good argument for striking down Lawrence, why not do the same sort of cherry-picking of foreign opinion in defense of symbolic governmental support of the majority religion?

This Supreme Court is getting completely out of hand in its efforts to clothe personal preference as superlegislators in a pretense of following the Constitution.
6.29.2005 3:19pm
Chris Lansdown (mail) (www):
"Does nonestablishment causes have a pro-religious social effect? If so, aren't decisions like this GOOD for conservative christianity socially (if not politically)?"

It does and they are, provided that they don't move into the realm of being anti-religious or bans on religion. There's a reason why some of the leading proponents of the separation of church and state are religious. (There's a separate phenomenon going on, though — it's not at all uncommon for religions to become purely social affairs (e.g. "christian food" as described by Ben Gunn in Treasure Island), and they are hurt by these sort of decisions.)

However, as Eugene noted, that would not be a valid reason for the court to strike down such displays; it's not the business of the courts to try to grow religion in the US.
6.29.2005 3:22pm
Chris Lansdown (mail) (www):
"Suddenly Justice Scalia seems to feel it actually matters what judges from foreign countries (let alone European ones!) think about their country's laws and jurisprudence. Why is Scalia citing a foreign judge? Granted it's not a judicial opinion, but he believes this "Rest of World" opinion matters enough to be quoted in a U.S. Supreme Court decision. Why?"

Scalia was quoting the guy as an example of what foreign countries do that we should not do; this is hardly showing deference to foreign courts.
6.29.2005 3:26pm
Michael B (mail):
The final graph in this link, provided above, serves to summarize the a prevalent concern, an excerpt from that graph follows:

"We thus think, with Justice Scalia, that in the over-whelming majority of non-Fourth and Eighth Amendment [decisions], it will not be appropriate for the Supreme Court to cite foreign sources of law. Citation of such law is, in fact, a sign that the Court is falling into policy-making, as it did in Dred Scott, Reynolds, and Roe v. Wade, and this in turn suggests the justices are behaving illegitimately. We thus substantially agree with the spirit if not all of the substance of Justice Scalia's warning against citing foreign sources of law in U.S. constitutional cases."

Recoursing, or retreating, to putatively purely technical, legal and/or apolitical framings is not an option that can be taken seriously vis-a-vis these cases. To the contrary, ideological, moral, sovereigntist, etc. categories will either be grappled with on an eminently conscious level or others will assert their will as a substitute for a better founded conception of the rule of law. Which is not to say sophistries and casuistries will be wanting in their more arbitrary rationales.
6.29.2005 4:27pm
Bruce Moldovan (mail) (www):
Chris: it's not just showing deference to foreign courts but foreign opinion. Rest assured when Roe v. Wade is overturned, the Court's Bush-appointed majority will cite to other countries who have banned abortion to bolster it's opinion.

Can it not be possible that some highly subjective social issues issues innately involve looking at what the rest of the species is doing in order to come to a decision? What is considered cruel and unusual punishment is external to the consitution; the constitution only bans it, it doesn't define it.
6.29.2005 4:37pm
Zywicki (mail):
Clyde Mnestra is right in his point--I intended it as a friendly question as to whether the Supreme Court or scholars have provided a coherent or persuasive theory. My apologies.
6.29.2005 4:43pm
Andy Freeman (mail):
> As no sane individual would contest the fact that the international community has as much ability, and as much right, as we do to discuss and and answer this question, perhaps their opinion on the subject is at least worth mentioning.

No one is contesting their right to "discuss and answer". The question is whether we should consider, and the available evidence says that it would be insane to do so. Consider the recent membership of the relevant UN communities as an example. Or, the genocides that they apologize for until they figure out how to blame the US. etc.
6.29.2005 4:46pm
SupremacyClaus (mail):
If the Justices quoted foreign data, and social experience, as test of potential legal doctrine, there would be less if any controversy. Disputes over scientific validity, applicability here, and statistical correction, can be remedied technically. The justices might stop hiring, as clerks, cult mental cripples from elite schools, and consider hiring some social science grad students who can educate them about the horrific effects of their playing around with our survival and future. Maybe from the Midwest.

We differ very little as people from other nations. Example. When governments repossess land and redistribute to favored political groups, mass starvation ensues, economic implosion. Short of that, mass rioting can ensue. This has happened many times, many places. Why would our results be different? So centuries of foreign experience says, no, to the doctrines of Kelo, whatever the Euro poodle trainers taught the Court on its summer vacation. Lawmaking is human experimentation with frequent hideous results. Data and experience should be drawn from any source possible for guidance.

However, for unelected, unaccountable lawyers to borrow from foreign law violates Article I Section I, an "in our face" defiance of the rule of law. The outcomes do not reassure. When Scalia quoted Blackstone in Blakely, he was quoting, not just any foreigner. He was quoting a person who voted for the Stamp Act and prosecuted patriots in absentia, an enemy and oppresor of our besieged nation. He could have quoted from Mao's Red Book or from Saddam's On the Application of Justice, just as heinous, just as alien, but both less threatening and damaging to the US than Blackstone.

The future result of this "foreign law" imposed on us, by a word searching, case name forgetting Dominican garbed buffoon is unknown, but scary. His "set the criminals free" decision has yet to fully bloom, with an explosion in the crime victimization rate, once modestly suppressed by the sentencing guidelines. If the crime victimization rate increases as these cases go from remand to reversal, to deterrence of future proper sentencing, the resignation of the entire court would be appropriate, including that of the dissenters. Set off a crime wave, you should lose your cush job. Failing that, Congress needs to impeach the lot. (You lawyers oppose that because these justices generate so much of your business. You love them. You need them. Lawyer dependency makes the defense of these error-prone justices have no credibility. Don't bother unless you are a non-lawyer member of the public to make any argument on their behalf. Lawyer argument is logically disqualifed per se, unless it opposes its own economic interests. As a hobbyist, I would be interested in finding an historic instance of that.)

An example of good copying based on foreign, real world experience, not on foreign laws? Many nations ended slavery peacefully by freeing the newborn and other methods, decades before 1860, some before the Constitutional Convention. That foreign experience, the mistake prone American lawyer did not consider seriously.
6.29.2005 10:41pm
Kevin:
Leaving aside all of the intellectual arguments for whether the Court should or should not rely on international law for constitutional guidance, it is hard to escape the conclusion that the Court's periodic reliance on world legal opinion is purely strategic rather than sincere, perhaps to dress up the Court's personal predilections in the guise of legal authority.

The above quote demonstrates why, to some degree, we who went to law school are actually disadvantaged when discussing the Supreme Court. We assume that the Supreme Court applies some objective, non-biased law that exists somewhere in the sky, but non-lawyers see the simple obvious truth. The Supreme Court decides cases based upon personal preferences; judicial fiat in effect. What changed between Bowers and Lawrence? Nothing, but the Supreme Court majority couldnt say simply that they believe that gay sex shouldnt be a crime. Note that I didnt say that it is Constitutionally protected, only that these justices dont believe personally that an "evolving society" should criminalize such conduct. To accomplish their preference, they cherry-pick those sources, which have absolutely no effect or relevance on our Constitution.

Why didnt they do the same in the 10 Commandments case? Because their personal preference didnt support doing so. If the justices believed personally that monuments of the 10 Commandments should be allowed in courthouses, they would have moved heaven and earth to hold so.

I'm very curious as to how many readers actually believe that the justices do more than vote their preferences.
6.30.2005 1:28pm
Seamus (mail):
>>Is it possible that the experiences of the global community would be more relevant to an issue that concerns basic human rights?<<

Well, the entire justification for "incorporating" the first amendment's establishment clause is that the separation of church and state is somehow an essential bulwark of freedom of religion.

The whole theory of incorporation is that some "liberties" are "implicit in the concept of ordered liberty" and that neither liberty nor justice would exist if [they] were sacrificed," and that the 14th amendment therefore prohibits the states from depriving people of those liberties without due process of law. Starting with Gitlow v. New York in 1926, the Supreme Court has held that various of the rights protected by the Bill of Rights were "incorporated" into the 14th amendment. Justice Black used to argue that *all* the rights under the BoR (but not not explicitly set forth there) ought to be incorporated, but the courts have never accepted his view, which is why the rights to indictment by grand jury and to keep and bear arms have never been held to bind the states, and why ever since Lawrence v. Texas there appears to be a 14th amendment right to sexual freedom.

The Supreme Court assumed in Cantwell v. Connecticut, Everson v. Board of Education, and McCollum v. Board of Education that the establishment clause was incorporated, but no one seems to have considered the obvious objection that an establishment of religion simply isn't the deprivation of anyone's liberty, much less deprivation of a freedom that is implicit in the concept of ordered liberty.

In fact, not until Abington School District v. Schempp (1963) did it occur to any of the justices to address that objection, which Justice Brennan did so with the back of his hand, arguing that the objection "underestimates the role of the Establishment Clause as a coguarantor, with the Free Exercise Clause, of religious liberty." I don't think Brennan was particularly interested in the views of Europeans on whether the establishments of religion in England, Scotland, Sweden, and other countries were consistent with ordered liberty, nor do I think that anyone on the majority of either of Monday's 10 Commandments opinions care, either.
6.30.2005 1:29pm
Seamus (mail):
Kevis has an excessively cynical view of at least some justices' decisionmaking. I am confident that Scalia, at least, would not rule that a state law legalizing abortion on demand was unconstitutional, however much his personal preferences might tempt him to such an act of judical legislation.
6.30.2005 1:32pm