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Against Impeaching Justice Ginsburg Over the Use of Foreign Law.--

A few days ago, John Hinderaker had a long post criticizing Justice Ruth Bader Ginsburg's defense of the Supreme Court's use of foreign law. Paul Mirengoff adds to John's post the statement:

It won't happen, of course, but I think there's a case to be made for impeaching Justice Ginsburg.

Paul then repeats his claim in a post of his own:

Last night, John criticized Justice Ginsburg for her speech in South Africa defending the use of foreign law and court decisions to interpretation of the American Constitution. I suggested that a good case can be made that Ginsburg should be impeached. That case will become even stronger to the extent that her willingness to use foreign law continues to inform her opinions.

I find the current debate over the Supreme Court's reference to foreign law somewhat strange, since the Supreme Court has cited foreign law for almost all of its history. In a new manuscript by my colleague Steve Calabresi and Stephanie Zimdahl, they document nearly all the uses of foreign law in the Court's history. It can be downloaded from SSRN at the end of their long abstract here.

Calabresi and Zimdahl take a somewhat more nuanced approach than does either Justice Ginsburg or her critics:

This Article [describes] . . . what the Supreme Court's practice has actually been from 1789 to 2005 with respect to citing foreign sources of law. We will show that the Court's citation of foreign sources of law in recent years is not unprecedented as Justice Scalia implies, but that citation to foreign sources of law is increasing in the modern era in ways that may be very problematic. We show that there have been some dramatic, if not notorious, instances of the Court citing foreign sources of law historically, as happened for example in the Dred Scott case and in the anti-polygamy case, Reynolds v. United States. Moreover, we will show that the debate over citing foreign sources of law in American judicial decisions is not a new one at all. Indeed, the practice was debated as early as 1820 when Justice Livingston, in a sentiment echoed many years later by Justice Scalia, responded to Justice Joseph Story's citation of foreign sources of law in a Supreme Court case to provide a definition for the crime of piracy, by stating that it it is not perceived why a reference to the laws of China, or to any other foreign code, would not have answered the purpose quite as well as the one which has been resorted to. Thus, Scalia's modern lament finds an echo as long ago as 1820 in the U.S. reports. . . .

This article thus examines the many instances between 1789 and 2005 in which the Court has cited foreign sources of law and points out that several themes become apparent. First, on some occasions, the Court cites such sources as evidence of the reasonableness of its decisions: foreign practice is reviewed as to whether an American practice is reasonable or unusual. Second, we think it is striking that the three Justices who have historically been most likely to cite foreign sources of law in their opinions, Justices Joseph Story, Felix Frankfurter, and Stephen Breyer, were all, at some point in their careers, professors at Harvard Law School. This suggests a Harvard nexus to the debate over citation of foreign sources of law, which has gone previously unobserved. . . .

Our analysis of the Court's practice leads us to several conclusions.

First, we believe those who say the Court has never before cited or relied upon foreign sources of law are clearly and demonstrably wrong. In fact, the Court has relied on such sources to some extent throughout its history.

Second, the Court has, however, cited foreign sources of law with much more frequency in far more important constitutional cases in recent years, as Justice Scalia has suggested, and in addition the Court has tended to cite foreign sources of law in some of its most problematic opinions such as Dred Scott, Reynolds, and Roe v. Wade. This suggests Scalia is right to be wary of the Court's new trend in this direction.

Third, as Professor Calabresi has argued elsewhere, citation to foreign law is most justifiable when the U.S. Constitution asks the justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. In contrast, citation to foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States. In these cases, we agree with Justice Scalia that the Court's task is to interpret the original meaning of our Constitution and not to determine the current day reasonableness or unusualness of a legislative practice. We thus think, with Justice Scalia, that in the over-whelming majority of non-Fourth and Eighth Amendment, 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.

While John and Paul make several good points in their critiques of Justice Ginsburg's speech on foreign law, the case for Justice Ginsburg's impeachment is neither outlined by Paul, nor do I see any serious basis for it.

I don't know whether a Justice should ever be impeached for holding a bad judicial philosophy, but such a philosophy would have to be far more unusual than Justice Ginsburg's to form a plausible basis for impeachment. By the way, I don't read Paul as actually advocating that Ginsburg be impeached, just opining that a "good case" could be made for such a move.

Marcus1 (mail) (www):
>In contrast, citation to foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence<

I'd guess that not all of the Justices really buy into the stuff about "deeply rooted in American history and tradition" as an end-all for which rights are fundamental. I don't. We could have burned gays at the stake for 200 years for all I care, and I'd still say it violates the Constitutional right to due process to jail them in 2005 for having concensual sex. If foreign law helps elucidate that, all the better.
3.19.2006 1:11am
M (mail):
Additionally, as anyone who can read can see, the citations of foreign law in Lawrence have nothing to do with whether a the right in question is deeply rooted in the American tradition. They are there to undercut the use of foreign law and tradition in Bowers, especially but not only in Berger's concurance. This is quite obviously the reason that they are there and it's either sloppy or dishonest to claim otherwise. As such they were perfectly reasonable.
3.19.2006 1:26am
Kovarsky (mail):
M,

I think you're absolutely right on the use of international authority in Lawrence. I'd go a step further than you do, and I have elsewhere, to argue the thick irony in the the sudden preoccupation with international legal sourcing (which, incidentally, I believe has developed in the wake of Lawrence specifically). That preoccupation is far more outcome driven than the sourcing itself.
3.19.2006 1:46am
Brian G (mail) (www):
Am I the only one that finds it funny and pathetic at the same time that the liberal judges (O'Connor included) go abroad and do there best to be admired by the international community? It makes me laugh and mad to see them pander to the so-called intelligensia of the world. Funny how the most successful country in the history of the planet, to people like Ginsburg, is not to be emulated, but instead we should emulate the failed Socialism of the rest of the world.
3.19.2006 2:14am
DrewSil (mail):
Brian G, um wow. I'm pretty sure one of the top stated purposes of international judicial travels is to help foster the rule of law in other less fortunate parts of the world. As such I find your criticism of the "Liberal" justices odd to say the least.
3.19.2006 2:28am
James Lindgren (mail):
Calabresi thinks that the Justices should spend one of their 3 summer months sitting on lower courts. Unlike members of Congress, who leave Washington to see their constituents at regular intervals, Justices tend to stay with their own class or to go abroad during the summers.
3.19.2006 2:42am
Paul McKaskle (mail):
Not having read the article or made a complete survey of the use of foreign law by the Supreme Court, I wonder to what degree citations in the past were on points dealing with the development of common law or an understanding of what was meant by various provisions of the Constitution. In the Crawford v. Washingon Scalia (properly, in my view) analyzes English law preceding and contemporary to the adoption of the Bill of Rights to determine the scope and meaning of the Confrontation Clause. (Some think his analysis was inaccurate, but that is a different issue than whether he should have analyzed it at all.) While contemporary English or other foreign law may not be relevant to the development of the common law, I think earlier English cases are probably fairly relevant to the proper analysis of what the common law should be. (Otherwise, why do first year law students read Rylands v. Fletcher--assuming they still do.)

More probematic is the citation of contemporary foreign law, such as decisions from the European Court of Human Rights. The Human Rights Court is not responsive to any elected government but has expressly held that its duty is to interpret the European Convention on Human Rights expansively as an "evolving document." Lawrence cited Human Rights Court cases as persuasive authority as to why the Texas law was unconstitutional. But, there is nothing in the Human Rights Convention text (or its "legislative history") that speaks to the issue--in essence the Human Rights Court found that the "evolution" of the Convention proscribed discriminatory treatment of homosexuals.

(For what it is worth, I think Lawrence reached the correct result but for the wrong reasons and that citation of foreign law was not justified. I think White's concurrence to Griswold would provide a better basis for the decision. But that is another topic for another day.)
3.19.2006 2:59am
Kovarsky (mail):
The notion that Lawrence introduced international precedent into the sodomy jurisprudence is a partisan, noxious myth of the most unscrupulous kind. It is a myth that has been used to tar and feather Kennedy and the other Justices that signed on to his opinion. Everybody would benefit from reading the opinion, which exposes the fiction of the consensus of the bumper sticker caricature flowing from it.

There are 5 passages that cite to international law. Five. The first one is a fairly routine citation to a British case that was not used to support the idea that the U.S. is somehow subject to the international norm on the position, but instead to show the framers’ understanding of what the prohibition on sodomy actually meant:

The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting “mankind” in Act of 1533 as including women and girls).

The remaining four citations – every single one of them – were made as a REBUTTAL to the position, INTRODUCED BY BURGER IN BOWERS, that the “norms of western civilisation” favored the state. Kennedy and the “liberal” justices didn’t create this method of interpretation; the “conservative” Burger did. That the conservatives now use their very own methodological two-by-four to bludgeon the liberal wing of the court is ironic to say the least, and a deliberate lie to say the most.

Kennedy continues with four more paragraphs discussion the influence of civilised western “norms” on the subject quite expressly set forth undercut the assumptions the Burger made in Bowers (as in, Kennedy says, "I'm doing this to counter Burger in Bowers). Look:

Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.” 478 U.S., at 196.

So, contrary to the now entrenched myth that Lawrence initiated consideration of “foreign law” on this point, it was actually Bowers that endorsed that method of interpretation. To rebut Burger, Kennedy continues:

The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, §1.

And then this:

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

And finally this:

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. &J. H. v. United Kingdom, App. No. 00044787/98, 56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11—12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

There is nothing wrong with Kennedy attacking an express assumption Burger made in Bowers, particularly because that assumption has been cited time and time again as legal authority. I realize that this more complicated (actually, it’s not that complicated) picture is incompatible with the turncoat caricature that cultural conservatives have created for Kennedy. That is unfortunate, but the desperate need for a caricature does not justify distorting the truth on the individual pieces of data.

Lawrence has what I consider fatal flaws, and I am happy to acknowledge those. But it is not, as the bumper sticker bromide suggests, letting Cuba, socialists, Angola, or Pakistan legislate in place of Congress.
3.19.2006 4:40am
Federal Dog:
"Brian G, um wow. I'm pretty sure one of the top stated purposes of international judicial travels is to help foster the rule of law in other less fortunate parts of the world."


Yes, indeed, WOW! Judicial imperialism for the benighted nations of the world? Oh, the hegemony!!!
3.19.2006 7:32am
Frank Drackmann (mail):
Scalia is the only Justice who drives an American made car, although its a Mercedes SUV made in Alabama.
3.19.2006 8:22am
CharleyCarp (mail):
On a practical note, I expect that it's much easier nowadays for the lawyers to cite, and the clerks to find, foreign law than it was even 20 years ago.
3.19.2006 8:23am
margate (mail):
Two observations.

First, the "citing foreign law is anti-American" seems on the evidence to be no more than political theater.

Why? Because many of these same critics, I suspect, support posting the 10 Commandments in class rooms or citing Old Testament portions of the Bible -- or the "Torah," as it is known to those in the Jewish faith.

What's so ironic about that is the 10 Commandments, and every other injunction in the Old Testament, or Torah, is about as *foreign* as it gets when you're talking about law.

Let's be clear. These were the laws given by God to a tribe of Middle-Easterners called Israelites about 3,500 years ago. You don't get more foreign, or old, than than that. See Dubai/ports debate.

And the laws in the Torah, or Old Testament, are definitely not injunctions that bind Christians, not a single one. Just the opposite.

About 2000 years ago, it was decided that the Torah's laws were no longer binding -- at least on those who believe Jesus is the Messiah. (Hence the term "Old Testament".)

That was Paul's point in Galatians 3:10-14: "Christ redeemed us from the curse of the law, having become a curse for us--for it is written, 'Cursed be every one who hangs on a tree.'" That Jesus fulfilled the Mosaic laws is a critical element of Christianity. That tenet renders the Old Testament -- including the probition against same sex and bestiality -- at best advisory.

So one could argue I think that posting the 10 Commandments in the class room is an act of posting *foreign law* and of telling our children they should follow foreign law.

[Yes, some will argue "but the 10 Commandments is the foundation for our own legal system." Read closer. There are only 3 legal injunctions in the Decalogue barring murder, theft, and perjury/false statements. The rest are moral injunctions - one god, no graven images, keep sabath, no vain use of God, honor parents, no coveting others' spouses and property, no adultry. I go again to the inherently inconsistent argument of those on the right in the Culture war that the Bible tells us same sex is barred by God. For Christians, Galatians 3:13 says those laws are no more.]

Furthermore, it's not as though Justices Thomas or Scalia have any problem citing laws from this clearly foreign source called the Torah. In U.S. v. Bajakajian, 524 U.S. 321 (1998), Justice Thomas -- writing for the Court -- explained that forfeiture has its roots in the Old Testament. Id. at 330 n. 5 ("The 'guilty property' theory behind in rem forfeiture can be traced to the Bible, which describes property being sacrificed to God as a means of atoning for an offense. See Exodus 21:28.").

Justice Thomas, in the same footnote, even cites two long-dead British legal commentators, Blackstone and Howe. See also Jerome B. Grubart, Inc. v. Great Lakes Dredge &Dock Co., 513 U.S. 527, 549-440 (1995) (Thomas, J., dissenting) ("It is especially unfortunate that this has occurred in admiralty, an area that once provided a jurisdictional rule almost as clear as the 9th and 10th verses of Genesis"). So isn't it clear now that Justice Thomas cites foreign law.

Second, the Supreme Court cited Hugo Grotius -- the long-dead French international law expert -- as early as 1789 in Hoare v. Allen, 2 U.S. 102, 104 (1789). And the case was about mortgage interest.

And that notorius anti-American, C.J. John Marshall likewise cited foreign-law sources routinely to settle mundane, purely "American" legal issues. See, e.g., M'Ilvaine v. Coxe's Lessee, 6 U.S. 280, 325 (1805) (citing Grotius, Puffendorff, Burlamaqui, Vattel)

So what's this criticism really all about? Because those hurling the criticism from the right are ignoring the *originalist* nature of citing foreign-law sources in the Supreme Court.

Seems to me to be another act in the GOP culture war against the use of rationalism in government.
3.19.2006 8:44am
jab (mail):

Second, we think it is striking that the three Justices who have historically been most likely to cite foreign sources of law in their opinions, Justices Joseph Story, Felix Frankfurter, and Stephen Breyer, were all, at some point in their careers, professors at Harvard Law School. This suggests a Harvard nexus to the debate over citation of foreign sources of law, which has gone previously unobserved.


This has got to be a joke, right? Please tell me that law professors are not this utterly ignorant of statistics... or maybe they are... given the fact that Harvard has been the training ground for a large number of justices with very different judicial philosophies, from very "conservative" to very "liberal", the fact that these three went to Harvard has absolutely nothing to do with informing this argument.
3.19.2006 9:12am
Brett Bellmore (mail):
It's perfectly reasonable to cite foreign legal precident dating back to before we had our own legal culture; The problem is with using it to over-ride our native legal traditions, rather than explicate where they're derived from.
3.19.2006 10:18am
CJColucci (mail):
Didn't any of us ever pad a term paper?
3.19.2006 10:25am
c.f.w. (mail):
I for one would like to see more not less citation to foreign law, including (as appropriate) Old Testament. So long as the source of the idea appeas and can be checked, what is the harm? These cases are read most by lawyers, of course, who are not children. Is it better to have the Justices refer to foreign law ideas without saying where the ideas are from?

Are we sayng judges cannot think about what is happening in foreign areas/times? The executive and legislative branches can of course look beyond time and space borders. Why not judges, so long as they keep in mind that they are not elected and they tie their ultimate holdings to predominantly US sources traditionally relied upon by US judges.
3.19.2006 10:31am
Visitor Again:
we think it is striking that the three Justices who have historically been most likely to cite foreign sources of law in their opinions, Justices Joseph Story, Felix Frankfurter, and Stephen Breyer, were all, at some point in their careers, professors at Harvard Law School. This suggests a Harvard nexus to the debate over citation of foreign sources of law, which has gone previously unobserved.

Don't forget that Justice Ginsburg also went to Harvard Law for her irst two years of law school, apparently long enough when she was most impressionable and vulnerable, to pick up the international law fungus.

Justice Kennedy, a Harvard Law graduate, hob nobs in Europe every summer with foreign jurists. He only cites this foreign stuff to get approbation from his new foreign buddies. Someone should just yank his passport, a much less cruel and unusual alternative than impeachment and conviction.

Story and Frankfurter are dead, so no need to worry about them anymore. Breyer is a different question; he's probably intractable on this, a true believer like Ginsburg, and will have to be gotten rid of.

You fail to note another previously unobserved factor, that most of the justices who lick foreigners' boots not only had Harvard Law connections but also are Jews or Catholics. Make of that what you will, but you might want to consider urging that more American-loving Protestants who didn't go to Harvard Law be put on the Court. By my count, under that standard, only one of the sitting justices would be fit to serve, Justice Stevens, and so you have your work cut out for you. Stevens doesn't go in for this foreign law stuff, does he?
3.19.2006 10:32am
Marcus1 (mail) (www):
Margate,

Good comment!

Visitor Again,

>Story and Frankfurter are dead, so no need to worry about them anymore. Breyer is a different question; he's probably intractable on this, a true believer like Ginsburg, and will have to be gotten rid of.<

Probably not the best way to make your point. Flirting with death threats, ironically or otherwise, is just kind of creepy.
3.19.2006 11:16am
Eric Muller (www):

"By the way, I don't read Paul as actually advocating that Ginsburg be impeached, just opining that a "good case" could be made for such a move."
But Mirengoff is the one who raised the idea in the first place. It's not as though there was some big debate swirling about whether to impeach Justice Ginsburg, and Mirengoff decided to add his two cents. This idea, as best I can see, originated with him, and was then picked up by the salivating right-most wing of the blogosphere.

So why cut him a break with this supposed distinction between advocacy and mere "opinion?"
3.19.2006 11:48am
anonymous coward:
"Is it better to have the Justices refer to foreign law ideas without saying where the ideas are from?"

Apparently yes, to the anti-foreign law crowd. At a dialogue between Breyer and Scalia on this issue, Breyer asked this question and Scalia responded that he did not want foreign law cited at all (in the controversial contexts, treaty disputes etc. are fine). Even if their reasoning is correctly (according to both justices) treated as nonbinding, like a scholarly treatise or paper. Why? I have no idea.

Maybe Scalia has a trace of a notion that pops up in this context from time to time, that foreigners (like elite universities) will seduce right-thinking individuals from proper legal reasoning, so we need to draw a sharp line.
3.19.2006 12:14pm
James Lindgren (mail):
I wrote:

"By the way, I don't read Paul as actually advocating that Ginsburg be impeached, just opining that a "good case" could be made for such a move."

Eric Muller wrote:

But Mirengoff is the one who raised the idea in the first place. It's not as though there was some big debate swirling about whether to impeach Justice Ginsburg, and Mirengoff decided to add his two cents. This idea, as best I can see, originated with him, and was then picked up by the salivating right-most wing of the blogosphere.

So why cut him a break with this supposed distinction between advocacy and mere "opinion?"

Eric,

First, as far as I know, Paul Mirengoff was the one who first raised the impeachment idea, and my post certainly attributes the idea to him.

Second, saying that a "good case" can be made for impeachment is not the same as advocating impeachment. I assume there are a lot of Democrats today who think that a good case can be made for Congress' censuring Bush, and might be willing to express that opinion publicly, but do not advocate that Congress actually try to censure Bush.
3.19.2006 12:40pm
Constantin:
I cannot wait until Justice X cites to Saudi law to support abrogating the rights of women or accused criminals or gays. I'm sure Ginsburg will approve entirely.

Seriously though, the real question here regards what's available for reliance. Either all foreign law is, or none should be. Our Supreme Court, having for decades taken it upon itself to decide which laws "really count" (see, e.g, strict scrutiny) now has applied the same standard to foreign authority.
3.19.2006 12:58pm
Dave Hardy (mail) (www):
I'm not so sure I'm comfortable with using foreign standards to assess what is a "reasonable" search and seizure under the 4th Amendment. From what I understand, in most of Europe (let alone in most of the world outside that area), the standard is more like "anything goes."
3.19.2006 1:20pm
Luke R. (mail) (www):
Who cares what judges cite to rationalize their holdings? A everyone knows, it is empirical fact that their personal politics best explain their position on a given case. Given that they are deciding cases based on their personal politics and then rationalizing their decision backwards through the lens of a supposed "canon of judicial interpretation," isn't this debate just so much fluff?
3.19.2006 1:26pm
josh:
Lingren says, "By the way, I don't read Paul as actually advocating that Ginsburg be impeached, just opining that a "good case" could be made for such a move."

If Powerline Paul hadn't been advocating for impeachment, he wouldn't have used the word "should", when he said "I suggested that a good case can be made that Ginsburg SHOULD BE IMPEACHED." (emphasis added)

This falls in line with the Powerline boys' ad hominem meme of seeking to silence anyone with whom they disagree, be it journalists who obtain classified info from whistleblowers ("jail 'em"), the MSM ("don't believe 'em), science ("global warming doesn't exist"), etc.

When Paul says a reasonable case can be made that Ginsberg SHOULD BE IMPEACHED, he is advocating her impeachment. He does not like citation to foreign law, not because of its merits, but because, for now (setting aside Calibresi's article)it is a method used by the more liberal justices. He makes no effort to distibguish between the cases where it is used to determine reasonableness of an American legal scheme, as does Calabresi. He simply wants to silence the other side.

Let's not be his apologist.
3.19.2006 1:45pm
Kate1999 (mail):
Margate,

Can't we reverse your comment -- Wouldn't the left go nuts if the conservatives started citing to the bible in the course of interpreting the Constitution?
3.19.2006 1:57pm
Kovarsky (mail):
Contantine

Seriously though, the real question here regards what's available for reliance. Either all foreign law is, or none should be.

Uh, why? What if the assertion it shows is that the founders thought sodomy was between a man and a man, or a man and a woman (Lawrence)? What if there is already an entire jurisprudence built on an erroneous assumption about international law (Bowers)? Would the court be allowed to correct that by identifying the doctrine as improperly based on assumptions about the international law (Lawrence)? What if the precedent requires as a test that international opinion be used as an index of meaning (C&U punishment) - are judges supposed to disobey precedent (Atkins)? Or how about when the conswtitution requires (the Law of Nations)?

So, whatever you think the merits in an absolute sense are, the glib idea that use of foreign materials is all or nothing choice is incorrect.
3.19.2006 1:59pm
A.W. (mail):
I think this debate ignores alot of important distinctions. Yes, at the risk of sounding like John Kerry, I am saying we are not being nuanced enough.

First there is a marked difference between citing foreign law in statutory interpretation cases v. citing foreign law in constitutional cases. While the courts can significantly vex the will of the people by creative misinterpretation of statutes, in the end the people are capable of asserting their will over such behavior. By comparison, constitutional cases it is difficult, if not impossible for a mistaken interpretation to be reversed.

Second, there is a difference between citing foreign law as an influence on domestic lawmakers v. citing foreign law because it is supposed to be morally superior to domestic lawmakers. For instance, no one cried foul when, in U.S. v. Balsys, the SC cited English precedent to determine the scope to the privilege against self-incrimination. But by comparison many cried foul when the SC cited foreign constitutions when it came to gay rights in Lawrence v. Texas. Why? Well, besides the obvious opportunistic reasons (i.e. they don't like gay rights), there is a legitimate distinction. In Balsys, they cited the pre-constitutional English precedent because it was assumed that the framers of the constitution knew of those precedents and intended to incorporate those precedents into the constitution when they ratified the 5th Amendment. By contrast, you can't plausibly claim that 20th century documents were an influence on 18th and 19th century amendments, so clearly the only reason to cite foreign law in lawrence is because they represent enlightened opinion that the justices felt we should follow. The difference is between citing foreign law to help you understand what the framers wrote v. citing foreign law to argue for changing what the framers wrote.

Nor can they pretend that these decisions that cite the "higher authority" of foreign law really be seen as anything but naked judicial policy making. You will never see the supreme court citing the constitution of China or Saudi Arabia (if Saudi even has a constitution) on the subject of the first amendment, or sexual freedom for that matter. Even if we limited it to democracies, there are certain cases where you are not likely to see Justice Ginsberg citing foreign "enlightenment;" for instance, I think if any state tried to ban the American Nazi party, the SC won't cite the multitude of foreign democracies who also ban their respective Nazi party as precedent. They will simply strike it down.

The court's sole legitimacy comes from its willingness to interpret the constitution as it is written. What is the point of having a written constitution ratified by supermajorities of the people, unless its meaning is supposed to be unchanging? In Marbury v. Madison, the Supreme Court argued that if the constitution did not actually restrain the legislature, then constitutional limits on its power are pointless:

> To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

> Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

This logic applies equally well, to whether the SC is bound to obey the constitution or might creatively misinterpret it at will, especially when we remember that like Congress, the Constitution claims to limit the power of the courts, too. Remembering that, we could then rewrite that same passage to demonstrate how important it was for the courts to be limited by the constitution as follows:

> To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any [judicial] act repugnant to it; or, that the [judiciary] may alter the constitution by an ordinary [decision].

> Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary [precedents], and, like other [precedents], is alterable when the [Courts] shall please to alter it.

Thus the very power of the SC to review the decisions of the legislature implies that they only have this power so long as they stick to the constitution itself.
3.19.2006 2:01pm
Kovarsky (mail):
Visitor Again,

Justice Kennedy, a Harvard Law graduate, hob nobs in Europe every summer with foreign jurists. He only cites this foreign stuff to get approbation from his new foreign buddies. Someone should just yank his passport, a much less cruel and unusual alternative than impeachment and conviction.

Did you read my post above - did that sound like pandering, or did it sound like responding to Burger?

Also did you know that Justice Roberts teaches almost exclusively abroad? Did you know that, actually, when he got the call from the president he actually had to take an emergency flight back from europe, where he was teaching those "snotty intellectuals."

How do those fit into your model?
3.19.2006 2:03pm
Kovarsky (mail):
AW,

What is the point of having a written constitution ratified by supermajorities of the people, unless its meaning is supposed to be unchanging? In Marbury v. Madison, the Supreme Court argued that if the constitution did not actually restrain the legislature, then constitutional limits on its power are pointless:

You do realize the irony you present here right - you make your originalist argument and you support it by reference to a quintissentially extratextual power.
3.19.2006 2:08pm
Fishbane (mail):
Visitor Again: You fail to note another previously unobserved factor, that most of the justices who lick foreigners' boots not only had Harvard Law connections but also are Jews or Catholics.

Um, wow. I think that's about the most loaded (and screamingly obviously biased) statement I've seen here.
3.19.2006 2:15pm
Andrew Hyman (mail) (www):
Notice the way Calbresi and Zimdahl lump Reynolds (the polygamy case) together with Dred Scott and Roe v. Wade as examples of judicial policy-making. This is absurd. The latter two cases struck down statutes, whereas Reynolds merely let a statute stand. The Reynolds Court declined to pretend that any constitutional provision forbade the federal government from banning polygamy on federal territory.

Regarding citations of foreign law, there are various kinds of citations: (1) old foreign law that may have informed the framers; (2) more recent foreign law that judges cite in support of their desired interpretation of a constitutional provision; (3) foreign law cited by state judges to modify common law subject to legislative revision; et cetera. The real problem is with (2). Calabreasi and Zimdahl say that (2) is okay for some constitutional provisions but not for others. But why should (2) be okay to determine what is "reasonable" under the Fourth Amendment? The Constitution is in the voice of "We the People." If the American people generally believe that a practice is "reasonable," then who are a bunch of judges to cite some foreign law to the contrary? Regarding the word "unusual" in the Eighth Amendment, Calabresi and Zimdahl say (2) can be determinative there too. But up until the Civil War, the obvious way to determine whether a federal punishment was "unusual" was to look to the practices of the states; the 14th Amendment made that more difficult by applying the Eighth Amendment itself against the states, but that still is no license for courts to look overseas instead. Unusualness could easily be determined by figuring out whether state legislatures have gone on record declaring that they'd allow a punishment if it were deemed constitutional; if few states have done so, then a punishment could be considered "unusual" for purposes of the Eighth Amendment. Foreign law ought to have nothing (or very little) to do with it.
3.19.2006 2:19pm
Constantin:
Kovarsky, your question and mine are at root the same. What I'd ask of folks like you, and Ginsburg, is for some prospective guidance as to what's in play.

That is, why not Taliban law re: the rights of gays? Why not European law on abortion? In reality, your reliance on certain foreign precepts is bound only by what you think is a proper outcome. I'd venture to guess, sadly, the body of law that supports actually killing gay people for being gay is much larger and longer-established than that affording them liberal rights.

So, then, ex ante, what are the rules?
3.19.2006 2:22pm
DrewSil (mail):

Yes, indeed, WOW! Judicial imperialism for the benighted nations of the world? Oh, the hegemony!!!

I wasn't actually saying I agree with the philosophy, and I did intentionally ham up the judicial imperialism angle. My point was mostly that Brian was criticizing the judges for not doing what they were actually doing.
3.19.2006 2:31pm
Kovarsky (mail):
Constantin,

Our questions are not at root the same. You are asking the question only as a rhetorical tool to argue that there are no standards.

(1) to incorporate the content of a foreign rule when that rule is incorporated by US statute
(2) to incorporated the content of a foreign rule when consideration of that rule is an established part of federal common law (conflicts of laws, forum non conveniens, international arbitrarion, etc.)
(3) to cite foreign law, particularly british and colonial decisions (as in lawrence) to show what the founders meant when they used a particular term (8th A; 2nd Amendment; 3rd Amendment)
(4) where precedent requires that foreign laws be examined to establish consensus (Atkins)
(5) where international authority is introduced to rebut an earlier constitutional premise that the authority cut the other way (Lawrence).

That's just a few. I understand that you have read somewhere that any citation to foreign law will open the floodgates, or slip us down the slope, or whatever dramatized metaphor you want for using the law of taliban extremists here. If your understanding of the material is more than just a bumper sticker familiarity, that I tihnk you will find this proposition pretty difficult to support.

And before you respond further, please go up and read my lawrence post.
3.19.2006 2:39pm
Anderson (mail) (www):
I apologize if this violates a posting rule, but anyone who thinks that Ginsburg has done *anything* impeachable re: "foreign law" is either ignorant, or just plain nuts.

I don't see how a reasonable person could conclude otherwise.

And certainly, saying "a good case can be made for impeaching Ginsburg," in the present partisan environment, is neither innocent nor exempt from the above dichotomy.

(Okay, I left out a 3d possibility: deliberately and maliciously spreading views one knows to be unsound for their partisan advantage. Whichever, I will feel safe ignoring this Mirengoff character in future.)
3.19.2006 2:46pm
Constantin:
Kovarsky,

Thanks for the condescension; it's charming. But my question concedes your premise. What I'm asking is, even given that turning to foreign law is necessary in some instances, how would you decide which foreign laws to rely on?

And I'll take even a "bumper sticker" answer. But I don't think you have one.
3.19.2006 3:00pm
JLR (mail) (www):
I feel compelled to point out that margate, in an otherwise excellent comment, makes one small error. Hugo Grotius was Dutch, not French.

I think that Calabresi and Zimdahl make good sense regarding their claim that foreign law is relevant in 4th and 8th Amendment cases, but is generally not relevant in other cases involving constitutional interpretation. To use foreign law in other constitutional controversies, especially those involving substantive due process, invites judicial policymaking.

Of course, if the Supreme Court is interpreting treaties, the landscape changes dramatically.
3.19.2006 3:40pm
Sydney Carton (www):
Constantin: "What I'm asking is, even given that turning to foreign law is necessary in some instances, how would you decide which foreign laws to rely on?"

Easy. The left only cites to foreign laws written by other leftists. There is no other guiding principle. As Luke R said:

"A everyone knows, it is empirical fact that their personal politics best explain their position on a given case. Given that they are deciding cases based on their personal politics and then rationalizing their decision backwards through the lens of a supposed "canon of judicial interpretation," isn't this debate just so much fluff?"

Of course this debate is fluff. Ginsberg doesn't even have to listen to oral arguments to decide cases. She takes a nap, writes a liberal opinion after asking her fellow socialists in Europe what they think, shreds another piece of the Constitution, tells another state legislature to go screw itself, and goes on her merry way.

Marcus1 admitted that the Constitution isn't even important as a written document in deciding what is Constitutional. He said in the first post on this thread: "We could have burned gays at the stake for 200 years for all I care, and I'd still say it violates the Constitutional right to due process to jail them in 2005 for having concensual sex. If foreign law helps elucidate that, all the better."

His entire point assumes that THERE IS NO POINT IN WRITING ANYTHING DOWN IN A CONSTITUTION. The Constitution is, in reality, a legal document. But liberals look at it like it's a statement of principles that outline general social policy. I have to wonder, if given the choice today between having a written constitution and an unwritten constitution (like England has), whether liberals would pick an unwritten one. Their penchant for producing 500+ page constitutions, ala the European Union, suggests they'd go for the written one but load it up with every principled statement that they can think of. But perhaps a smarter (though not necessarily wiser) leftist would convince them to go with an unwritten constitution: for if it's unwritten, and they keep their hold on power, then they can get ANYTHING they want.

However, this written or unwritten analysis is an academic exercise anyway. Liberals have already assumed that the Constitution is merely a statement of THEIR social principles, and no other. So while we have a written constitution, what the liberal judges find "unconstitutional" or "constitutional" cannot actually be read from the Constitution. And that's just fine with them, since it accomplishes the same thing letting them get ANYTHING they want.

I have to even wonder why parties submit briefs to the judges. At this point, they'd be better off trying bribery to serve their clients.
3.19.2006 3:59pm
Cornellian (mail):
I think that Calabresi and Zimdahl make good sense regarding their claim that foreign law is relevant in 4th and 8th Amendment cases, but is generally not relevant in other cases involving constitutional interpretation. To use foreign law in other constitutional controversies, especially those involving substantive due process, invites judicial policymaking.

I'd make the somewhat broader case that foreign law might be relevant to a number of constitutional provisions, not just 4th and 8th Amendments, but only English cases. Back at the time of the Clinton impeachment, scholars and lawyers were digging up old English cases to try and figure out what "high crimes and misdemeanors" means and no one claimed that it was some kind of outrage to look to foreign law.
3.19.2006 4:03pm
JLR (mail) (www):
Cornellian, I think you might be conflating two different kinds of "foreign law." I don't believe anyone quibbles with the use of English law throughout constitutional jurisprudence. I should have been more specific in my comment that "foreign law" in this debate does not the include Anglo-American common law tradition.

People who are against the use of "foreign law" like Justice Scalia are against the use of "foreign law" for pretty much any constitutional case or controversy, but are very much for the use of the English common law tradition when relevant (e.g. the opinions of Sir Edward Coke).

For example, Justice Scalia dislikes the US Supreme Court opinion Trop v. Dulles, for introducing the jurisprudential doctrine of "evolving standards of decency" in regards to what constitutes cruel and unusual punishment. Trop v. Dulles opens the door jurisprudentially for using any foreign law in 8th Amendment cases.

But I don't know of anyone who claims that Anglo-American common law should not be used generally in constitutional jurisprudence.
3.19.2006 4:16pm
JLR (mail) (www):
Correction: I accidentally deleted the citation for Trop v. Dulles (leaving in only the first comma).

Trop v. Dulles, 356 US 856 (1958).
3.19.2006 4:19pm
Elliot123 (mail):
Josh,

I'd have to question PowerLine's ability to silence those with whom it disagrees. You and others seem quite vocal.
3.19.2006 4:23pm
Joel B. (mail):
Regardless of the basis of "impeaching" Justice Ginsburg for her willing reliance on foreign law, there is something to be said for the fact that Justice Ginsburg is wading into the deep end.

Perhaps more distirbingly was her willingness to equate rational criticism of judicial decisions, and concern with the over-assertiveness of the judicial branch with inciting people to violence against her. She seems to be having a hard time with freedom of speech of those who disagree with her. There's probably no "good" reason to impeach her, (not that one needs a good reason, ultimately impeachment is all political, impeachment and removal being completely unreviewable at least not without some kind of judicial coup) but here is certainly a hope that she is willing to leave the bench soon.
3.19.2006 4:26pm
Marcus1 (mail) (www):
Kate,

>Can't we reverse your comment -- Wouldn't the left go nuts if the conservatives started citing to the bible in the course of interpreting the Constitution?<

That's a good point. I think the problem is that we're supposed to have a separation of church and state in America, based in our secular Constitution and the first amendment prohibiting an establishment of religion. Citing the Bible would tend to look like the judges were relying on it for it's moral authority, which is problematic, because it sounds a lot like establishing religion.

If the point is to show the way things were 2000 years ago, though, for some reason (like, "look, people did this even back in Biblical times"), then the outrage might not be as much as you suspect.
3.19.2006 4:44pm
margate (mail):
Kate1999 said:

Can't we reverse your comment -- Wouldn't the left go nuts if the conservatives started citing to the bible in the course of interpreting the Constitution?


Two points in response.

First, I'm not arguing that liberals should be up in arms that the Bible is cited in Supreme Court decisions. Or that they'd be justified. The SCT has been citing the Bible since at least the Jefferson administration 200 years ago. See, e.g., M'Ilvaine v. Coxe's Lessee, 6 U.S. 280, 324 (1805) (Marshall, C.J.) ("The bible is the most venerable book of antiquity; there we find expatriation practiced, approved, and never restrained. The family of Jacob became subjects to the Egyptian monarch. Moses abandoned Egypt, his native land, and David left Saul, his prince.").

I'm arguing that those on the right, like the Powerline folks, who complain about citations to foreign law should accept that the Bible is quintessentially "foreign law." In fact, according to Christian theology, it's not law at all -- at least the Old Testament isn't.

Second, even assuming my point was something else, it's worth noting that as recently as 1998, Justice Breyer -- for the Court -- relied on the Bible in deciding the meaning of the word "carries," as in "carries a firearm," in a criminal case. See Muscarello v. United States, 524 U.S. 125, 128-29 (1998) ("The greatest of writers have used the word with this meaning [to convey in a vehicle]. See, e.g., The King James Bible, 2 Kings 9:28 ("[H]is servants carried him in a chariot to Jerusalem"); id., Isaiah 30:6 ("[T]hey will carry their riches upon the shoulders of young asses").)

No one complained.

Now, I grant that if a majority of the SCt began deciding the meaning of "liberty" or "due process" or even "commander in chief" by reference to the Bible, and only the Bible, then I'd think you have something. In fact, I think a good deal of Americans -- over 50 percent -- would be concerned.

But if that were ever to happen, we'd be in a heap more trouble than the Powerline folks paint right now.

We'd have moved to theocracy.
3.19.2006 4:44pm
Kovarsky (mail):
Joel B.,

Perhaps more distirbingly was her willingness to equate rational criticism of judicial decisions, and concern with the over-assertiveness of the judicial branch with inciting people to violence against her.

Really, how do you explain her vote in FAIR v. Rumsfeld? Let me guess:

"Oh, that's just one example in the other direction."
3.19.2006 4:49pm
Moneyrunner43 (www):
Well, that was interesting. It does appear that the long winded and rather intemperate claims of Kovarski were blown out of the water.

It’s not a good idea to take your battleship into waters occupied by submarines.
3.19.2006 4:57pm
Perseus:
The remaining four citations – every single one of them – were made as a REBUTTAL to the position, INTRODUCED BY BURGER IN BOWERS, that the “norms of western civilisation” favored the state.


Scalia's response:

The Bowers majority opinion never relied on "values we share with a wider civilization," ante, at 16, but rather rejected the claimed right to sodomy on the ground that such a right was not " 'deeply rooted in this Nation's history and tradition,' " 478 U. S., at 193-194 (emphasis added). Bowers' rational-basis holding is likewise devoid of any reliance on the views of a "wider civilization," see id., at 196. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court ... should not impose foreign moods, fads, or fashions on Americans." Foster v. Florida, 537 U. S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).
3.19.2006 5:03pm
yclipse (mail):
Recall the citation to foreign law included in Footnote 1 from Chief Justice Rehnquist's dissent in Casey:


[ Footnote 1 ] Two years after Roe, the West German constitutional court, by contrast, struck down a law liberalizing access to abortion on the grounds that life developing within the womb is constitutionally protected. Judgment of February 25, 1975, 39 BVerfGE I (translated in Jonas &Gorby, West German Abortion Decision: A Contrast to Roe v. Wade, 9 John Marshall J.Prac. &Proc. 605 (1976)). In 1988, the Canadian Supreme Court followed reasoning similar to that of Roe in striking down a law that restricted abortion. Morgentaler v. Queen, I S.C.R. 30, 44 D.L.R. 4th 385 (1988).
3.19.2006 5:08pm
Kovarsky (mail):
Constantin,

Thanks for the condescension; it's charming. But my question concedes your premise. What I'm asking is, even given that turning to foreign law is necessary in some instances, how would you decide which foreign laws to rely on?

First, I wasn't being condescending. You had posted that you and I posed a shared question as though it were a shared void in our respective explanations. But I had "posed" that question not to imply that there was no answer (as you did), or to suggest it was some hurdle that Ginsburg et al couldn't easily overcome (as you did), but just as a means of identifying the specific straw man your cirticism attacks, before I answered it. And I answerd that precise question upthread.

In fact, I don't have too many questions about citation to international authority because it's been done for years and enjoys a politically neutral pedigree. It is only after Lawrence - which is a jurisprudence where conservative jurists (Burger in Bowers) introduced the foreign authority argument - that cultural conservatives started going apeshit over the practice. That reaction, frankly comes off as much more politically motivated than anything the court has been doing. Most people who have looked at this stuff know that there's nothing inherently "liberal" about it, and it's been going on for years. Remarks from people like Sydney are particularly silly because they betray pretty nakedly the speaker's unfamiliarity with the subject matter (I'm not talking about you here, Constantin).

Please read upthread to the two separate times I have already set forth criteria that would not delimit the set of international authority that an opinion could use. Hyman also makes an attempt to parse this stuff above.

And as an aside - if you are asking something beyond that which I've tried to answer 4 times - I infer you are asking the following question (which, incidentally, I've never posed to anybody) - namely, what forms of international authority can come in: statutes, cases, treaties, etc. Well, I think treaties that we have signed are fair game for many of the purposes above, particularly when the point of law involves the presence of a national or international consensus (think 8th amendment) (by the way, we SIGNED both of the treaties that Ginsburg cited in Grutter). If you are making a historical point about the state of legal understanding at the time that a constitutional provision was enacted, I think many statutes or cases in England or the US would be fair game (a recent treaty would be useless here). If you are talking about certain "conflict of laws" rules that are effectively international common law (particularly those affecting arbitral jurisdiction), the citing other international cases excersing that same jurisdiction is perfectly appropriate persuasive authority (think Congress's responsibility to uphold the "law of nations" in the constitution).

I'm sorry if you think I'm being condescending, but that is only because you do not appear to be reading my responses before you just re-type the question. I have made all the effort to respond that I am going to make without some measure of reciprocation on your part.
3.19.2006 5:18pm
Marcus1 (mail) (www):
Sydney,

>Marcus1 admitted that the Constitution isn't even important as a written document in deciding what is Constitutional.<

Your perception of the liberal position is really wildly off base. If it's truly your view of what liberals think, I would suggest that you do some more reading on the issue.

No, my statement did not at all assume that the Constitutional text doesn't matter. What I called into question was the phrase "deeply rooted in American history and tradition." That phrase, you may not be aware, is not in the Constitution. The Constitution simply says that a person's liberty shall not be deprived without due process of law.

Indeed, you and Scalia are the ones who want to replace the Constiutional test with one about what is deeply rooted in our history. That is not what our Constitution says. My argument was that judges are not bound to, nor should they, shackle themselves to non-textual substitutions for the Constitution.

The first question should be whether a governmental action violates the constitutional text. And when it comes to putting people on "trial" for having adult concensual sex (similarly to putting someone on "trial" for being Mexican or for breathing or for eating a hamburger), I think the plain text of the due process clause is violated. You can bang a gavel and jump up and down and spin in the air three times, but you can't call it "due process."

If you're paying attention, you'll notice that this is actually a "conservative" argument. It's exactly what Conservatives say about things like replacing "public use" with a non-constitutional test like "public purpose." I'm not sure why you would find it so offensive in other contexts.

>I have to even wonder why parties submit briefs to the judges. At this point, they'd be better off trying bribery to serve their clients.<

Your hyperbole is completely out of control. I mean, "at this point?" Can you really tell me the Court was more tied to the Constitutional text back in the days of Marbury v. Madison than they are today? This kind of modern conservative court-bashing is, I believe, completely disingenuous. The fact is that conservatives are not in the slightest tied to the Constitutional text any more than Liberals. They have merely taken a position where they try to obscure the extent to which they ignore the constitutional text, and then attack the other side for doing the exact same things that conservatives do themselves.

In truth, I don't think we disagree about the role that text should play in interpreting the constitution. I think you're simply unwilling to acknowledge the extent to which other considerations are necessary. You still make those other considerations (although different ones, such as what your religion teaches rather than international law), but you simply pretend that you don't.

The fact that you attack even conservative arguments as liberal when they are applied in ways you don't like is largely why I believe that.
3.19.2006 5:19pm
yclipse (mail):
Just saw this in the abstract of the Calabresi-Zimdahl article:


Chief Justice Rehnquist, though he did join Justice Scalia's dissents in Lawrence v. Texas and Simmons v. Roper, once stated that now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process. Moreover, as we discuss below, Chief Justice Rehnquist is the author of a major opinion in the assisted suicide case, Washington v. Glucksberg, which cites and discuss how the practice of assisted suicide has led to abuses in the Netherlands. Justices Scalia and Thomas joined Glucksberg without commenting on its citation to foreign legal practices on assisted suicide. . .
3.19.2006 5:20pm
Joel B. (mail):
Ginsburg said "These measures recycle similar resolutions and bills proposed before the 2004 elections in the United States, but never put to a vote. Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support. And one not-so-small concern - they fuel the irrational fringe."

I don't see what related relevance her decision in FAIR v. Rumsfeld has.
3.19.2006 5:29pm
Kovarsky (mail):
Perseus,

As even the excerpted quotation demonstrates, throughout my entire post I was careful not to attribute Burger's remarks to the majority in Bowers. That also doesn't change the fact that Kennedy was epressly responding to Burger's international law in each of those instances and not setting them forth as affirmative reasons for voting, so without further explanation from you, I'm not sure what what you're trying to get out of this....
3.19.2006 5:40pm
Constantin:
Kovarsky, I've read every character you've typed and I disagree that you've attempted to answer my question (and that of Scalia, the Powerline guy, et al.).

The Court in Lawrence decided it would look beyond our shores for guidance. Why did the Court pick the sources it did, and fail to discuss those from, say, Saudi Arabia or Yemen? This has nothing to do with straw men or camel's noses; it's a real question about a real case.

And I will reciprocate, perhaps not as you requested: I'll refrain from reponding to your posts until stop obfuscating and address this query. I can understand why you'd wish to refrain from owning up to what we both know is the answer here, but I see no reason why it should keep me from asking.
3.19.2006 5:42pm
JLR (mail) (www):
For what it's worth,

In Washington v. Glucksberg, 521 US 702 (1997), Chief Justice Rehnquist technically didn't cite Dutch law as such. He mainly cited a Report by Congressman Charles Canady on assisted suicide in the Netherlands ["Physician Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady to the Subcommittee on the Constitution of the House Committee on the Judiciary," 104th Cong., 2d Sess., 10-11 (Comm. Print 1996)]. In the main body of the text, Chief Justice Rehnquist writes:

We begin, as we do in all due process cases, by examining our Nation's history, legal traditions, and practices. See, e.g., Casey, 505 U. S., at 849-850; Cruzan, 497 U. S., at 269-279; Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion) (noting importance of "careful `respect for the teachings of history'"). In almost every State--indeed, in almost every western democracy--it is a crime to assist a suicide.

Such a line about "almost every western democracy" is a throwaway in which Chief Justice Rehnquist starts with "the Nation's history, legal traditions, and practices," and continues by going in-depth into the Anglo-American common law tradition, and American legal history more specifically.

Moreover, Chief Justice Rehnquist's discussion of the Netherlands later in his majority opinion is mainly used as a way of exemplifying why Washington has a reasonable basis to outlaw euthanasia. Chief Justice Rehnquist notes how the case study of the Netherlands substantiates the fact that Washington state "may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia." Thus, the experience of the Netherlands can be used by the Washington state legislature as a way to substantiate the reasonable basis for its prohibition.

The way Chief Justice Rehnquist uses the experience of the Netherlands as an example in Washington v. Glucksberg is quite different from the way foreign law (i.e., anything other than the Anglo-American common law tradition) is used to show whether a search or seizure is "unreasonable" and thus unconstitutional, or whether a punishment is "cruel and unusual" and thus unconstitutional (due to the application of the jurisprudential test of "evolving standards of decency").
3.19.2006 5:50pm
Kovarsky (mail):
Joel,

I accidentally cropped off the relevant sentence that is inconsistent with FAIR:

She seems to be having a hard time with freedom of speech of those who disagree with her.

Please reconcile how she voted against the idea that this was speech, that it was protectible expressive conduct, and that it was inherently expressive association if, as I think we can all agree, she detests DADT.
3.19.2006 5:51pm
Perseus:
My point is that it seems like Kennedy was replying to Burger's dicta in order to promulgate his own "dangerous dicta."
3.19.2006 6:13pm
Kovarsky (mail):
Constantin,

The Court in Lawrence decided it would look beyond our shores for guidance. Why did the Court pick the sources it did, and fail to discuss those from, say, Saudi Arabia or Yemen? This has nothing to do with straw men or camel's noses; it's a real question about a real case.

Honestly, this is plain as day. Burger made a sweeping point about western civilization did not approve of homosexuality. Kennedy just answered that assumption. If you can explain to me how refuting a conservative justice's assumption about what western judeo-christian civilizations condones - if you can go from there and explain to me that there is nothing in between that and affirmatively disregarding the plain text of a statute because of a piece of yemeni law, please go ahead.

My point has been, over and over again, that the scope of acceptable authority depends on the proposition for which it is being offered. If you can find me a proposition where Yemeni law is relevant, like perhaps in an arbitral claim involving a yemeni corporation in a U.S. forum, where the parties have stipulated to Yemeni law under the Arbitration Act, then yes, you would have reason to look at Yemeni law.

But if the question is - as it was for Burger (NOT THE LIBERALS) in Bowers - does western judeo christian tradition sanction homosexuality, well, i don't really see how yemeni law matters. If think you can find a Supreme Court citation where the authority is dramatically outside the scope of the proposition for which it is being offered, please go right ahead. It would make things easier for me, so I could stop imagining on your behalf situations where the problem you are talking about might occur, even though it hasn't.
3.19.2006 6:21pm
Kovarsky (mail):
Perseus,

My point is that it seems like Kennedy was replying to Burger's dicta in order to promulgate his own "dangerous dicta."

I think that is fair. I don't have major problems with the proposition that Kennedy overdoes it on the "western civilisation" point. But it does bother me that this practice is cast as a "liberal" exercise. It was reassuring to see post after post instances where "conservative" justices engaged in precisely the same citation practice. Lawrence is cited as an instance of the "liberals" introducing "international law" into the debate, when in reality the conservative burger did it.

Frankly, I think the problem with that practice in cases like Lawrence is much more the open-ended nature of the substantive due process inquiry than it is with the citatoin practice itself, which I think can be fairly well defended on our current formulation of a substantive due process right (I mean really, how do we determine whether a right is sufficiently embedded in our tradition without looking at some english law around the time ratification, especially if that english law is only treated as persuasive authority).
3.19.2006 6:29pm
Robert Schwartz (mail):
Would you all be so enamored with foreign law if the majority in Lawrence had cited the Islamic law imposing the death penalty on homosexuals?

Just curious.

More to the point, I don't see how a case can be made for impeachment of a judge who issues poorly thought through decisions (surely most of the decisions since 1937). Art II Sec. 4 provides: "all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Even though I might like to, I can't make a straight faced case that bad judgment is a high crime or misdemeanor.

Certainly, we need to develop a more flexible means for judicial discipline.

A further question is whether Ginsburg is in good health. There is her recent falling asleep during oral arguments. A few months ago, I saw her on television giving a talk. She was wearing gloves, just as my great grandmother used to do, but gloves are not characteristic of her generation.
3.19.2006 6:32pm
Kovarsky (mail):
Robert,

As I have said before, it is very difficult to say whether a citation is "out of bounds" without first knowing what the citation is offered to prove.

In your scenario, like in any other, it depends. If the proposition is

"We will not extradite people to countries where they will be cruelly tortured or murdered, and they do that in saudi arabia -" Then the cite to Saudi Law as an example would be perfectly fine.

If the question is about homosexuals - Burger (the conservative) defined the scope of that question, which was limited to "judeo -christian civilisation." I think citation of saudi law on the point would be inappropriate, whether that law was used to support or to attack a personal preference of mine. I think Burger was inappropriate to reach out for that law in the first place, but I hold him at least if not more responsible than the "liberals" in Lawrence. And the answer to "what's to stop them from considering yemen" is that the scope of the proposition explicitly involves the norms of western civilizaiton - yemen (and saudi arabia) would be irrelevant to that question. i promise you, if the scope of the question is what does "judeo christian morality condone," there is a problem to citing authority beyond that history's geography, no matter what side you are on.
3.19.2006 6:50pm
Kovarsky (mail):
Robert,

Justices have slept through oral argument throughout history. That is nothing remarkable.
3.19.2006 6:52pm
SLS 1L:
Sydney - answer one simple question: is government-mandated racial segregation constitutional, or unconstitutional? Please cite to historical evidence.
3.19.2006 6:55pm
SLS 1L:
Insofar as the "why not the laws of country X" question is relevant, if a judge wants to cite to foreign law as authority (as opposed to citing it as evidence), the obvious criterion for whose law should count is "countries with a well-established tradition of liberal democracy." That basically means Western Europe, Australia, Canada, Japan, New Zealand, South Korea, and maybe India or Brazil. (Israel is a liberal democracy too, but the Justices would probably be reluctant to cite to it because of foreign-policy concerns.)
3.19.2006 7:07pm
von (mail) (www):
This is a very interesting thread. A few quick points:

1. Constatin: With respect, you're not paying enough attention to Kovarsky's argument (or to Justice Burger's concurrence). I really can't add to what he's written, so I'd just recommend that you read his posts again.

2. Incidentally, by calling Burger's resort to a hypothetical canon of Western Civ. "dangerous dicta," Scalia concedes in his dissent in Lawrence that the whole "foreign law" mess is essentially Burger's fault. Had Burger not looked to foreign law in the first place, Kennedy wouldn't have needed to look to foreign law in the second.

3. Nonetheless, two wrongs do not make a right. Thus, I wish that Kennedy had refrained from citing foreign law in this context and had merely dispensed with Burger's (incorrect) reliance on foreign law as irrelvent. Foreign law can be relevant (see Kovarsky, above), but it wasn't relevant in Bowers or Lawrence.

4. Attempts to use the foreign-law issue as a partisan weapon, as Powerline does, are tired, boring, and transparent.

5. Also tired, boring, and transparent are statements that advocate a position without actually advocating a position, e.g.,


It won't happen, of course, but I think there's a case to be made for impeaching Justice Ginsburg.


Either call for Ginsburg impeachment, or don't.
3.19.2006 7:15pm
A.W. (mail):
Kovarsky

> You do realize the irony you present here right[?]

Well, first, logic is logic, regardless of its source. I don’t cite it merely to say “The Supremes said it and therefore that is like the word of God” but because the logic is persuasive. What is the point of writing down a constitution, of ratifying it with a super-majority, if the supreme court can rewrite it at will? How can anyone argue that the supreme court has limited powers, if they are free to rewrite their limits at will.

But to those who slavishly follow the Supreme Court, it does present a dilemma; either this originalist argument is wrong, or the supreme court was wrong. If you are of the view that slavishly follows the supreme court, the dilemma is likely to make your heads explode.

Which, of course, might not include you.

And this decision of course is the foundation of the claim of judicial review and later, judicial supremacy. Pointing out that this decision actually supports originalism, not the “living constitution” view of things, fatally undermines the theory of the living constitution. It forces them to come up with a new justification for judicial review that will allow them to claim that its not merely the constitution trumping the legislature, but somehow the infinite wisdom of the courts. To anyone trying to make that argument, um… good luck with that. You’ll need it.
3.19.2006 8:20pm
Eric Muller (www):
Jim,

When, sitting in the living room late in the evening, a propos of absolutely nothing, I say to my wife, "I know you're too tired and so it won't happen, but a roll in the hay sure would be fun," I'm usually advocating something. Not just sharing an opinion about the generic merits of rolls in the hay.

--Eric
3.19.2006 8:31pm
Kovarsky (mail):
A.W.,

I was just pointing out that absolutist, single-meaning, originalists don't realize that such a position commits them to overturning the institution of judicial review entirely.

I don't think the idea that a constitution is "living" is the idea that it means what whatever the justices want it to mean. A text's meaning can be both dynamic and objective - indeed, I think this is the "soft" theory of a "living constitution" that people like me would endorse.

We prioritize objective meaning over subjective preference, but we don't necessarily think that the "objective meaning" inquiry is supposed to support many of the inquiries that the court (originalists) might use to interpret a statute or the constitution. Of course that methodology has its problems (what is reasonable, what is cruel and unusual), but those issues are just as problematic for originalists.

But it is important to separate the "living constitution" argument of the sort Marcus1 makes (judges should cherry pick stuff to achieve a desired outcome - sorry marcus1, maybe that's not what you meant, but that's how it read) from the argument that the interpretive inquiry should be objective (i.e. look to things that are verifiable) in instances where the constitution contemplates that we do that.

That paradigm is not without it's problems, but no paradigm is. I think that the "originalist" idea would get a lot more "soft-living-constitution" people one board if we really believed that the constitution "has" one meaning, even at the time of the framing. A requirement that a document's meaning be fixed at a given time strikes me as silly if the meaning at the time to be fixed is utterly indeterminate.
3.19.2006 8:50pm
Kovarsky (mail):
Eric,

I don't know whether you have seen Miller's Crossing (it should be required viewing), there's a great line when the local police chief is questioning the mob #2 about why his boss is ordering raids on local bars and implies that he's losing control. when the #2 rebukes him, the chief gets defensive and says "hey! don't get me wrong, I'm just speculatin' about a hypothesis."

long live the coen brothers.

btw, where is orin's open thread?
3.19.2006 9:00pm
A.W. (mail):
Kovarsky

> I was just pointing out that absolutist, single-meaning, originalists don't realize that such a position commits them to overturning the institution of judicial review entirely.

Not at all. Indeed, there is little doubt that the framers of the constitution intended there to be judicial review. There is even a citation of Dr. Bonham's case hidden in Federalist #10.

> I don't think the idea that a constitution is "living" is the idea that it means what whatever the justices want it to mean.

It is in effect what it means. Really, when has anyone advocating a "living constitution" said it forced them to do something they disagreed with?

> A text's meaning can be both dynamic and objective

Bullsh-- on that. The framers had a meaning when they wrote it. And if the courts stray from that meaning, it is illigitimate.

> the "originalist" idea would get a lot more "soft-living-constitution" people on[] board if...

Who cares if they get on board or not? Originalism is the only correct approach.

> A requirement that a document's meaning be fixed at a given time strikes me as silly if the meaning at the time to be fixed is utterly indeterminate.

Then the whole project of writing down a constitution was a waste of time. What they should have written is "do whatever our betters on the Supreme Court think." It would shorten the constitution considerably, right? "The form of government shall hereby be determined by the supreme court, and these constitutional provisions are only helpful suggestions to be discarded whenever inconvenient."

Absurd? of course. But that is what your logic leads us to: rule, ultimately by judiciary. Government by the judiciary, for the judiciary and of the judiciary.
.
The silliness of this approach is that the left thinks that this will benefit them. But the fact of the matter is that the courts, throughout history, have been overwhelmingly conservative. The Warren Court is the exception, not the rule. And if you unchain the Supreme Court from the language of the constitution, you might find next your most precious rights are eroded. If you allow foreign constitutions to be cited, you might find it is ones that are not as strong as you would like on civil liberties. Remember, it was conservative advocates of a "living constitution" who essentially gutted the civil rights of black people in the 19th century, first in dred scott, and later in Plessy. It is all short-sighted in the extreme to say you would like the constitution interpreted as a living document. Your freedom is safer in originalism.
3.19.2006 9:44pm
Brian G (mail) (www):
There is a huge differenc between the justices going to Europe to teach rather than going to Europe to hob-nob with the so called intelligensia and attempt to win their approval.
3.19.2006 9:46pm
SLS 1L:
And the evidence that the liberal Justices are trying to win the approval of Europeans by going to Europe is what exactly?
3.19.2006 9:55pm
Kovarsky (mail):
A.W.

Not at all. Indeed, there is little doubt that the framers of the constitution intended there to be judicial review. There is even a citation of Dr. Bonham's case hidden in Federalist #10.

You are incorrect. First of all, there is no textual reference to this power in the constitution (if you are an original text person). If you are an original intent person, we know the opinions of exactly 11 of the framers on judicial review. 9 of them are known to have supported it. 2 were known to have opposed it. It's pretty hard to attribute the intent to create, sub silecio, the singular most important power the judiciary has without overwhelming evidence that the framers thought about it and approved of it.

It is in effect what it means. Really, when has anyone advocating a "living constitution" said it forced them to do something they disagreed with?

I don't really care about the label. You can call me whatever you want - in fact, I'd prefer not to be called a "living constitution" person because I think it misrepresents what I believe. If you have a bone to pick with these people, don't pick it with me by attributing to me a set of beliefs I'm telling you I don't have.

> A text's meaning can be both dynamic and objective

Bullsh-- on that. The framers had a meaning when they wrote it. And if the courts stray from that meaning, it is illigitimate.


Really? Why don't you take a look at arrow's impossibility theorem, or the 55 years of public choice literature it has given birth to. A group with more than one set of criteria for a "preference" generally can't "mean" a single thing in a collective text. While I appreciate the sophistication of your response - "bullsh*t" - you might want to try reading some of the theories of the people that disagree with you. And even if there are some groups, empirically, that can be said to have collective preferences, the framers certainly don't exhibit the attributes of such a group. They had many different criteria for evaluating the efficacy of different constitutional provisions (a single criteria would be more compatible with a "single meaning"), the amendment process was often sequenced arbitrarily (yielding outcomes that the group would not "prefer" if it voted on things in a different sequence), there is little eivdence of what many of the framers thought about anything, what evidence there is is often conflicting. Finally, there are terms that just can't be "objectively" defined all over the constitution and the bill of rights. "Cruel and unusual," "reasonable," etc. What does equal protection mean, objectively? I suppose that you know and that anybody that pretends there is real disagreement on the subject is "bullsh*t."

Who cares if they get on board or not? Originalism is the only correct approach.

I can recommend a nice place for pom-poms and one of those styrofoam #1 fingers if you like.

Then the whole project of writing down a constitution was a waste of time. What they should have written is "do whatever our betters on the Supreme Court think." It would shorten the constitution considerably, right? "The form of government shall hereby be determined by the supreme court, and these constitutional provisions are only helpful suggestions to be discarded whenever inconvenient."

At this point it's pretty clear that you are just parroting some conservative talking point. I'm just waiting for the perfunctory citation to the "Let's not forget this is a constitution we are expounding...." quote. Of course some terms have a determinate meaning. Nobody under 35 can be president; and it means what it means. And many other terms operate within a fixed spectrum of determinate meaning (I assume you would not want to interpret the word "he" in the constitution to mean men, literally). But, as I've said, there are some terms that are utterly unclear. What on earth is due process? What are the privileges and immunities of national or state citizenship? What is a law abridging the freedom of speech - how much speech and how much abridgment? Your position denies the need for any sophisticated legal inquiry into these legal questions while simultaneously failing to provide an answer for them.

Absurd? of course. But that is what your logic leads us to: rule, ultimately by judiciary. Government by the judiciary, for the judiciary and of the judiciary.

You haven't done a particularly good job of explaining why my logic does that. You've told me I subscribe to a particular view of the constitution that I quite plainly told you I didn't subscribe to, and then you tell me that I fall victim to a criticism of that incorrectly-attributed subscription. Um, ok dude.

Remember, it was conservative advocates of a "living constitution" who essentially gutted the civil rights of black people in the 19th century, first in dred scott, and later in Plessy. It is all short-sighted in the extreme to say you would like the constitution interpreted as a living document. Your freedom is safer in originalism.

Get your facts straight. Plessy was a literalist reading of the 14th amendment - it said that "equal" was not the same as "not separate." Dred Scott was a substantive due process case, and it was not justified on the grounds that the constitution needed to "keep up with the changing times," which is the position-I-don't-subscribe-to-but-you-attack-me-for. I think what you are trying to articulate is that Dred Scott was the original substantive due process case, and substantive due process has become a vehicle for the left. I would agree with that point, descriptively, but that's not really relevant to what I'm saying here. I wouldn't be in favor of a substantive due process rule at all if I were to have voted on it a gazillion years ago (I think we would have had some more specific amendments by now if we didn't have the doctrine), but that's a different question than whether courts today must rely on it as precedent.

Please don't bother to re-explain the "intricacies" of your brand of originalism - I hear them every time I turn on talk radio, and they're all the same.
3.19.2006 10:15pm
Appellate Attorney:
"In fact, according to Christian theology, it's not law at all -- at least the Old Testament isn't."

Only if you believe in evolving standards of Biblical interpretation rather than taking the text at face value. The Bible is very clear that the Old Testment law still applies in the New Testament era:

"Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them. For truly, I say to you, until heaven and earth pass away, not an iota, not a dot, will pass from the Law until all is accomplished. Therefore whoever relaxes one of the least of these commandments and teaches others to do the same will be called least in the kingdom of heaven, but whoever does them and teaches them will be called great in the kingdom of heaven. For I tell you, unless your righteousness exceeds that of the scribes and Pharisees, you will never enter the kingdom of heaven." -- Matthew 5:17-20.
3.19.2006 11:28pm
dick thompson (mail):
SLS,

At what point was the decision made that any sources of liberal democracies would be useable and other sources not. Who determines what sources are useable in the first place. How does a new country get added to this golden list of sources of referrals. How often does this list get updated and how do countries get eliminated when a new form of government comes to power (Nazis or Fascists anyone?).

It seems to me that if you are trying to cite foreign sources to justify your decision, then you would have to allow all foreign sources or none. The whole concept of cherry picking which is what you are talking about is a bald takeover of the legislative action by the judicial portion of government and therefore should be unconstitutional. I think that is what Mirengoff was talking about. Our laws and constitution are written to apply to our society. To arbitrarily pick and choose foreign law references to supersede our laws just strikes me as plain wrong. What is the basis for anyone appealing these laws? Can I appeal your decision because a Dutch or French or Italian or even Saudi court was the basis for the decision? Can I get that law changed even though it is in a foreign country? The whole concept is ludicrous to me. Our laws and consitution in their entirety reflect our society and no other. We can change them either through new laws or amendments to our laws and constitution. We cannot change the laws of other countries and therefore the final decision of any judicial determination should not rest on the laws of any other country.
3.19.2006 11:30pm
Visitor Again:
Yes, Kovarsky, I read your message on why Kennedy cited nondomestic law before I posted my message, and I thought it pretty well destroyed any claim he improperly used it and, indeed, established that he had to use it to contest Burger in Bowers. Then again, I often agree with your postings on the law and a lot more, including the discomforting implications for private property owners arising from the FAIR decision, what kind of questions it is proper for a federal court to certify to a state court and even your prediction that Meadow will take over the Soprano family.

I didn't know Roberts had been attending a judicial conference abroad , but it fits in with my model fine; he's Harvard Law and Catholic and thus naturally dabbling with foreign influences. That model was my effort to ridicule the proposition that this alleged international law craze has a Harvard Law nexus; it was meant to imitate the wild-eyed response exemplified by wackos who call for the impeachment of Justice Ginsburg or anyone else for citing foreign and international law or for contending that it is proper to do so.

Since I have to explain it, my effort obviously failed. Indeed, since at least one reader took it literally--he thought I was seriously attacking Jewish and Catholic justices for being at the forefront of the internationl law craze rather than raising a nexus as ludicrous as the Harvard Law one--and since another thought my reference to getting rid of justices meant I was suggesting murdering them rather than impeaching and convicting them, I can only conclude my effort failed miserably. I'm doing penance now. But not for long because the Sopranos is about to come on.
3.20.2006 12:01am
Kovarsky (mail):
Visitor,

I think all of us frequent posters get screwed on the misunderstood sarcasm front once and a while. I wouldn't put too much stock in it though. The only reason people confuse it isn't because you're bad at it, but because ridiculous hyperbole is a favored form of expression amongst many once they get the benefit of a pseudonym.

I'm the one that should be apologize for not understanding the sarcasm, although I did sort of start to get the idea when you were talking about taking away their passports....
3.20.2006 12:26am
David M. Nieporent (www):
The problem with this argument is that Kovarsky has led people down the primrose path by claiming that the Bowers decision — or even Burger's concurrence — cited "foreign law." It did no such thing.

Burger did not cite foreign law. Under the analysis applied by the court, "fundamental liberties" protected by the constitution are defined as liberties "rooted in the nation's history and tradition." The court noted that this obviously doesn't describe sodomy, since sodomy was illegal when the country was founded. What Burger did is note, to bolster this argument, that prohibitions against sodomy go back even farther than that, to England, to Roman law, to show that there was never any tradition of recognizing a right to sodomy. Citing historical evidence is simply not the same as citing foreign law.

Nor, contrary to what several people have said above, did Scalia describe Burger's comments in Bowers as "dangerous dicta." Scalia described Kennedy's comments in Lawrence about modern trends in Europe as "dangerous dicta."

Kovarsky further writes:

As even the excerpted quotation demonstrates, throughout my entire post I was careful not to attribute Burger's remarks to the majority in Bowers. That also doesn't change the fact that Kennedy was epressly responding to Burger's international law in each of those instances

He may have been "responding to" Burger in the sense that when my wife asks me to take out the trash and I grunt from the sofa, one may say that I grunted in response. But one would hardly say that my grunt is actually a response to her request. Kennedy's arguments were complete non sequiturs. Whether the European Court of Human Rights decided in the 1960s that there was a right to sodomy is not in any way responsive to Burger's statement that the prohibition of sodomy has ancient roots.
3.20.2006 2:17am
SLS 1L:
Kovarsky - could you elaborate a bit on your point about Arrow's Impossibility Theorem above? I'm not clear as to why the fact that there's no coherent way of defining a social preference ordering out of individual preferences entails that a collectively written and adopted text can't have a coherent meaning. Even if the document should be understood as an articulation of a social preference ordering (which I find facially implausible), couldn't it just be a compromise?

I don't think originalism is as intractable as many of my fellow leftists do, but it deserves to be rejected as a philosophy simply because it leads to categorically unacceptable outcomes.
3.20.2006 2:35am
Kovarsky (mail):
David,

You say:

The problem with this argument is that Kovarsky has led people down the primrose path by claiming that the Bowers decision — or even Burger's concurrence — cited "foreign law." It did no such thing. Burger did not cite foreign law.

Say what? Where do you get your information? Here, let me just post Burger's concurrence, and then maybe you can explain what you mean when you say he doesn't cite foreign authority. Here it is:

As the Court notes, ante, at 192, the proscriptions against sodomy have very "ancient roots." Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality [478 U.S. 186, 197] and the Western Christian Tradition 70-81 (1975). During the English Reformation when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

Seriously, what did you mean when you said that? How was what I was saying misleading? And what I am REALLY hoping that you did not mean is that what Burger did is any less "citing" foreign rules because he's citing books and treatises that themselves cite decisions rather than citing the decisions directly, because that would be beneath you, one would hope. If that's your point, I take you to mean you would have preferred Kennedy to cite a magazine article or something? It's not like Kennedy suggests these things are controlling any sort of ruling, he's just saying that they are evidence that Burger was wrong in his statement of overwhelming legal consensus.

And even if we pretended that the absurd point that it is OK to cite a bunch of secondary-material-that itself-cites-case-law-but-not-case-law-directly were-true, well, Kennedy cites to a British statute, the study that statute was based on, and the European Court of Human Rights, which is not the particular law of any country at all.

And finally, when scalia says "dangerous dicta," he has in mind the proposition that foreign law matters at all, not which authority you use to identify it. He certainly doesn't have in mind this fantastic distinction between citing treatises and citing case law that seems to animate your contention.
3.20.2006 2:47am
Kovarsky (mail):
David,

Also, you said:

Whether the European Court of Human Rights decided in the 1960s that there was a right to sodomy is not in any way responsive to Burger's statement that the prohibition of sodomy has ancient roots.

If you read Kennedy's opinion, you'll see that what Kennedy quite explicitly says is that the ECHR's subsequent decisions have considered that '60's holding versus Bowers and rejected Bowers.
3.20.2006 2:52am
Kovarsky (mail):
SLS 1L,

Sorry, I blew through that because I know people start to tune out when you talk about public choice theory, even if it might be completely accurate.

Of course the text can mean something even though you can't have a stable collective preference ordering. In fact, the text must mean something. The two dominant strains of originalism are just takes on what that text means:

(1) original intent - what the framers "intended" (that was A.W.'s "argument")
(2) original understanding - what the text was originally understood to mean by the average/median/normal member of the audience (to my knowledge, original understanding theorists have never defined the audience that carefully, so it's hard to say exactly whose understanding they are pegging their theory on, but never mind that)

The arrow impossibility theorem is one that is frequently raised against legislative intent (I'm currently writing on whether it is useful against the idea that AEDPA's "purposes" - comity, finality, and federalism - can be given any operative effect in habeas cases).

My only point was that for "original intent" people, in order to be able to say that "original intent" is the meaning, surely you have to be able to define what "original intent" is. As you point out, the constitution was a compromise - its text matters, not the intent behind it. Who knows what "intent" the framers agreed upon when they agreed upon those words. Arrow's theorem does work because it shows that (and I'm speaking very generally here, because getting into the math would be silly) a big group like that almost certainly can't be said to have a collective "preference." And if you can't say that it has a collective preference, it's pretty hard to say they have any sort of meaningful "intent." Arrow's impossibility theorem has been married with subsequent condorcet stuff to show that most ratified texts will contain outcomes that are determined by the however the amendment process is sequenced (that's why the rule committees in congress are so important!), not because it expresses a majority endorsement of anyone's atextual intent.

Sticking to the Arrow (not the condorcet) stuff, though:
Many times, the claim that atextual collective intent would matter is a little silly - the legislature has failed to express a preference (and cannot as a conceptual matter be said to have one) except by what the text means. What an individual framer (constitution) or congressperson (statute) thinks or said in a floor debate is irrelevant unless it's in the text itself. Otherwise there's simply no way to tell whether that intent was ever ratified. If Congress hasn't ratified the text embodying a particular intent then you can almost never tell whether that intent is stable - i.e. if there is some other state of affairs that the legislature would have preferred.

It is 2:30 in the morning, so cut me some slack if I'm not crystallizing this perfectly right now - I'm hardly a professional public choice theorist.

That being said, I think that's more or less where scalia is. But scalia buys into the idea that what the text "means" is what the average audience-member at the time of ratification would have understood it to mean. I sympathize with his desire for his desire for legal determinacy (I like the idea of rules too!), but I'm very skeptical that "original meaning" is ordinarily the most determinate meaning. I particularly disagree with the idea that we should depart from established precedent in order to return to an original meaning - since that itself undermines the objective of determinacy.

It's a tough question, and I think the worst parts of all theories of constitutional interpretation come out when you're trying to interpret something like the equal protection clause or the due process clause of the 14th amendment. I certainly don't begrudge anybody originalism if they own up to how hard the question is. But I do have a big problem with people that pretend there's this terribly obvious answer there, and that everybody who doesn't just "fess up" to how easy the answer is is some sort of yalie communist that burns his underwear on his way to his weekly NAMBLA meeting. It's just a silly caricature and it doesn't help anybody figure anything out. Scalia's a really smart guy with a lot of really smart takes on these things. But so are a lot of other people that aren't originalists.
3.20.2006 3:22am
SLS 1L:
Kovarsky - thanks for the explication.
3.20.2006 3:29am
Visitor Again:
The problem with this argument is that Kovarsky has led people down the primrose path by claiming that the Bowers decision — or even Burger's concurrence — cited "foreign law." It did no such thing.

Bloody hell! There I was thinking he had me all convinced and it turns out it was the primrose path the whole time. But he's from Texas, I believe, and a lawyer to boot, and so allowances certainly must be made.
3.20.2006 5:31am
Visitor Again:
Uhmm, in view of my track record, let me make it plain that the message immediately above was not meant seriously. First, there was no primrose path in this case. Second, I am, of course, impervious to primrose paths in general. Third, even if I were not, I would never admit to having been led down one. I think that covers it.
3.20.2006 8:02am
Smithy (mail) (www):
Ginsburg is undermining our sovereignty. Not only should she be impeached, she should be tried for treason.

This country was founded on the idea of independence. What was the point of the revolutionary war if we now agree to be governed by courts in the Hague?
3.20.2006 8:54am
Hemingway:
I just wanted to point out, because some posts seem to assume to the contrary, that pre-1776 English law is NOT foreign law.
3.20.2006 10:48am
Hemingway:
Another thing; there's a big difference between, say, an American court citing an Italian court's interpretation of the Hague Convention for Service of Process Abroad as indicative of how the American court ought to interpret that treaty, and an American court citing Italy's abortion laws as indicative of what the "Constitution" says our abortion laws ought to be. I doubt even Scalia would object to the former. How anyone can not object to the latter is beyond me.
3.20.2006 11:02am
Chris S (www):
Given that the only corrective method imposed on judges is impeachment, isn't it appropriate to impeach a judge if their philosophy is inconsistent with the desires of the public (as represented by Congress)?

I'm not arguing that Ginsburg should be impeached but I think that the threshold for judicial impeachment is quite different from presidential impeachment..
3.20.2006 11:23am
Marcus1 (mail) (www):
Kovarsky,

You said:

But it is important to separate the "living constitution" argument of the sort Marcus1 makes (judges should cherry pick stuff to achieve a desired outcome - sorry marcus1, maybe that's not what you meant, but that's how it read) from the argument that the interpretive inquiry should be objective (i.e. look to things that are verifiable) in instances where the constitution contemplates that we do that.

Huh? So you're saying you're aware that you're misrepresenting my argument, but you're going to do it anyway as if you're not, despite the fact that I specifically disowned the statement that you're attributing to me? How annoying can you get?

The whole ridiculousness here is this idea that anybody is calling for "cherry picking." That is a complete lie invented by the Right. Cherry picking is something that both sides equally criticize the other side of doing, for instance, when the Conservatives cherry picked to make Bush our president, or when Scalia cherry picked in Lawrence or Kelo or whatever, based purely on the fact that he hates homosexuality but he likes property rights. But of course, Scalia doesn't admit that, because nobody does. Nobody calls for cherry picking. To make a distinction between those who call for cherry picking and those who want to follow the law is a completely absurdist dichotomy invented by right wingers.

The real question here is, what do we look to to decide what words like "liberty" or "due process" mean. Conservatives say look solely to history. Don't stop and think, don't ask what's fair, don't use any judgment or balance anything; just look at what people were doing at the time the document was ratified. Why? I don't know, it doesn't say that in the constitution. They seem to have cherry picked the idea that American history is all that matters, and then they proceed to cherry pick the history that they will consult.

I, on the other hand, would not limit myself purely to American history to decide what "liberty" means. Why? Because, for one, I don't think that is in any way what our founders intended, and for another, I believe that over time our conception of liberty has improved, and for a million other reasons. Does this mean I want a judge just making the law up? No, that is a completely dishonest representation of what I or what anyone else ever says or advocates. I have no idea why you would perpetuate it.

This entire argument is about how to resolve ambiguities in text. The idea that either way involves simply throwing out the text altogether and just cherry picking the "desired" result (which always carries the strange assumption that it is desired for some perverse and non-legally valid reason)is entirely baseless.

One of the interesting things in this discussion is how conservatives suddenly turn into complete moral relativists. Any consultation to reason or morality or social norms becomes "nothing more than judges just doing whatever they feel like on that day." Is that really what conservatives believe? Certainly it's not something they normally admit. That's one of the reason the whole argument strikes me as so dishonest.
3.20.2006 11:27am
josh:
Elliot123,

If James Risen and Eric Lichtblau, and publishers presumably, of the New York Times end up being prosecuted for writing about the NSA program, one would think the furor raised by the Powerline hacks would have something to do with it.

Same goes with at least discussion about impeaching Ginsberg. I'm all in favor of those hacks having their opinions and being free to state them. But that doesn't mean they won't be able to silence those with whom they disagree with.

Whistleblowers in government like those ranging from the Pentagon Papers to today's NSA story and the renditions in Eastern Europe surely will be chilled if Risen and Lichtblau were to go to jail. And I wonder what the true motivation of the Powerline guys would be in that regard.

I don't think they're advocating prosecuting leaks to the press to stop leaks. Were that the case, some of their targets would be Republicans who likewise have obtained and disclosed classified information.
3.20.2006 12:00pm
eddie (mail):
I really do not understand the outcry against Justice Ginsberg, compared to the silence against Justice Scalia.

Citing foreign law at least is apples to apples, i.e., unless we have such hubris in our country to think that the collected jurisprudence of the world might not have anything to teach us, having a dialog with other judges about judging and laws is (in Martha Stewart's words) "a good thing."

However, when Justice Scalia states the the Bible is a "source" of the law and that it should be with respect to interpretation of the Constitution, there is nary a peep from those who want only the words of the Framers to hold sway.

The Bible is many things, but it is not and cannot be used as precedent or citation. Isn't it a foreign document anyway?

And yes, I am aware that the Bible is the bedrock of a lot of Western civilization, and that the Founders probably read and were conversant in the Bible and that the Bible contains one of the oldest codification of so call "laws" etc., etc., etc.

The Constitution is not merely a set of laws but an aspirational document. Is it reasonable for an originalist to believe that slavery (and the recognition thereof in the original text of the Constitution) does not pose a consistency problem with the remainder of the Constitution's text? If the concept of slavery itself becomes incompatible with the precepts the formed the foundation of the Constitution, are the originalists still going to pillory the poor judge that points this out? I suppose so given the civil war. God bless originalists for saving this country.

I suppose it's much easier to "think" that one can "ascertain" the thoughts of someone (or the thoughts of a group of people) dead for hundreds or years, in spite of one's own contemporary filters, and then turn around and scold another for "thinking" that in those areas of ambiguity it might help to see how others in the world currently try to clarify such ambiguity in a "just" manner.

It's wonderful to hold the "belief" that there is only one answer to any judicial problem and a judge needn't think, merely dig in the right area for the buried treasure of understanding.

The founders, I believe, would not have sacntioned such a belief, since for them the light of reason always trumped belief.

And I understand that that is my opinion. And maybe it's not original (or originalist). But it's honest and allows for a discussion.

Otherwise, we should replace our judges with highly sophisticated computers (perhaps the same that are currently being used to "mine" communications data for "relevant" terrorist activity. Certainly there are only a finite number of meanings that 18th century educated men might have been thinking and those meanings could be programmed into an "interpretation" machine.

I suppose you'd have to add in a good dollop of the Bible, too. Because the Constitution itself gets in the way of that one. Or am I merely religion bashing now? I guess it's all how you interpret my words.
3.20.2006 12:16pm
David M. Nieporent (www):
Seriously, what did you mean when you said that? How was what I was saying misleading? And what I am REALLY hoping that you did not mean is that what Burger did is any less "citing" foreign rules because he's citing books and treatises that themselves cite decisions rather than citing the decisions directly, because that would be beneath you, one would hope.

Well, I would hope so too, although I'm not sure my wife would agree. :) (But that might be a special case.) No, I wasn't distinguishing between primary and secondary sources. I was distinguishing between describing the historical roots of our laws — heck, English law before our country was founded isn't "foreign law" at all — and citing foreign laws.

If you read Kennedy's opinion, you'll see that what Kennedy quite explicitly says is that the ECHR's subsequent decisions have considered that '60's holding versus Bowers and rejected Bowers.

I agree — but that is in no way responsive to anything Burger said. Burger said, paraphrasing, "The Court says that the ban on sodomy is rooted in our nation's history. In fact, it goes back long before that, before our nation even existed." Kennedy says, "Well, the ECHR ruled differently recently." I don't deny that — but so what? What on earth does the ECHR have to do with our nation's history?
3.20.2006 2:41pm
Forever Esquire (mail):
This article was published in the William and Mary Law Review, Dec 2005. Available on Lexis and Westlaw of course.
3.20.2006 2:46pm
David M. Nieporent (www):
The real question here is, what do we look to to decide what words like "liberty" or "due process" mean. Conservatives say look solely to history. Don't stop and think, don't ask what's fair, don't use any judgment or balance anything; just look at what people were doing at the time the document was ratified. Why? I don't know, it doesn't say that in the constitution.

Of course it doesn't "say" that; why would it need to say that? It doesn't say that we should assume the words are English rather than another language which happens to use ideograms that look like the Latin characters but which have entirely different meanings, either. But I think that's pretty obvious that when someone passes a law, we should ask what it actually meant, and not what someone who wasn't born when the law was passed wants it to mean. The amendment process is pretty specific; "Wait a while until the words can be said to mean something else," isn't one of the steps in that process.

Alright, you don't think it's obvious. What would you propose? Keeping in mind that the point of writing down a constitution is to constrain the government in specific ways.

* We can look at what the words meant at the time they were turned from words into law. That's one approach. It's the most determinative one.

* We can look at what most Americans think the words mean now. That's another approach. It's not quite as determinative -- the meaning can change over time -- but it still provides a semi-objective test to apply. Do most people think that whipping someone is "cruel and unusual"? Then it is.

* We can look at what most humans think the words mean now. That would also be determinative, but it would seem to be a lot harder to apply. Most humans have no knowledge of our legal system or history; they don't even know our language. (Moreover, since these decisions won't even apply to them, they don't have much stake in the debate.)

* We can look at what the judge happens to want the words to mean now. That doesn't really seem to provide any constraints whatsoever.

* We can allow the judge to select certain judges from around the world who happen to agree with him, and cite them as backup for his personal preference for what the words should mean now. That doesn't seem any more determinative than the previous approach; it just seems to be an attempt to create the illusion that the judge isn't just applying his personal preference, when in fact he is.

Of course it's cherry picking. The justice is picking the judges he happens to like. Clearly, a large percentage of the world doesn't think lopping off someone's hands for theft is "cruel and unusual," but you'll never see a Ginsburg citing one of those judges for such a proposition. She's citing judges (not, note, popular opinion) who happen to have declared that they share the views she has.

Any consultation to reason or morality or social norms becomes "nothing more than judges just doing whatever they feel like on that day." Is that really what conservatives believe?

I think so. Note that these judges we're discussing are generally citing these "evolving standards of decency" arguments in support of their decision to strike down laws. But laws which don't match popular morality or social norms don't need judges to strike them down; legislatures are ready, willing, and able to do that. When a judge strikes down a law, it's generally because existing social norms don't match the judge's views on morality.



Citing foreign law at least is apples to apples, i.e., unless we have such hubris in our country to think that the collected jurisprudence of the world might not have anything to teach us, having a dialog with other judges about judging and laws is (in Martha Stewart's words) "a good thing."

I don't think the collected jurisprudence of the world has anything relevant to teach us. That is, it has nothing to teach us about what the constitution means. That's not "hubris." If an Italian or a Saudi Arabian or a Korean writes an article for the Harvard Law Review about the Due Process clause, that's one thing. Nobody thinks Americans are smarter than Italians, Saudi Arabians, or Koreans. But an Italian judge interpreting the European Convention on Human Rights "teaches" us absolutely nothing about the U.S. Constitution, any more than an American interpreting the European Convention on Human Rights does.
3.20.2006 3:12pm
Marcus1 (mail) (www):
David Nieporent,

"Alright, you don't think it's obvious. What would you propose? Keeping in mind that the point of writing down a constitution is to constrain the government in specific ways."

First, I think you derive too much from the reason we record the Constitution. Certainly the purpose is to create something binding. But how exactly does that lead to originalism? I might paraphrase your argument as "If something is worth doing, it's worth doing in an extreme manner." That's one approach, but I happen to think it isn't right in every instance. I think we benefit from giving Judges, who tend to be educated and smart people, a little discretion to use their judgment. Does that mean make them dictators maliciously laughing as they tear apart historic documents? No. Just a little judgment.

Of course, you'll say I believe this simply because I like the results that liberal judges give. And I'll say you're an originalist simply because you like the 18th century more than you like the present day. I suppose if we're going to get anywhere, though, we'll have to get past those arguments.

"Of course it's cherry picking. The justice is picking the judges he happens to like. Clearly, a large percentage of the world doesn't think lopping off someone's hands for theft is "cruel and unusual," but you'll never see a Ginsburg citing one of those judges for such a proposition. She's citing judges (not, note, popular opinion) who happen to have declared that they share the views she has."

See, this is where I think you're morphing into the moral relatavist. Yes, of course Judges pick evidence that supports their positions. It's an essential part of their jobs. They do it whether they're picking the dictionary they're going to use as much as the international opinion. Your assumption, though, is that they do this in order to overcome what deep down they actually recognize the law to be. That they ignore the law, and instead find something else sufficiently similar that they'll be able to pass it off. Does this happen? Sure, but I don't think it has anything to do with liberal judicial philosophies, nor do I think conservative judges do it any less. That's simply being intellectually dishonest, and it's a problem that I don't think is going away soon.

Finally, back to the question of what "liberty" or "due process" means. IMO, it's not really the meanings of these words that is in dispute. Rather, it is an underlying factual evaluation. My first google definition of liberty is this: "autonomy: immunity from arbitrary exercise of authority: political independence." Are we really confused about what that means? I don't think we are. I think we all know what liberty means. The question is whether homosexual conduct, or other things, are included under the definition.

In this sence, I think words like "liberty" were specifcally meant to be pliable types of tests that would have different results over time. It's not that we're saying "liberty" actually "means" something different than it did 200 years ago. Rather, it is that liberty "is" something different than it was 200 years ago. I don't think the Constitution was intended to make liberty forever remain the same over the coming centuries. In fact, I think they specifically did not. That's why I think applying "originalist" principles to these terms is so wrong.

The same goes for "due process." Is the process that is "due" in 2005 the same process that was "due" in 1790? I don't think it is, in every case. In fact, I don't think it was ever meant to be. Thus, I find it rather dishonest, or at least incorrect, when conservatives pretend that these are disputes over what the word "due" means, asserting that liberals are trying to change the meaning. It's not the meaning that's changed, but rather the circumstances which determine what process is "due" in a particular instance.
3.20.2006 4:19pm
Kovarsky (mail):
Marcus 1,

Why did you just go on some rant about how I'm an annoying conservative? That's weird. You wrote:

We could have burned gays at the stake for 200 years for all I care, and I'd still say it violates the Constitutional right to due process to jail them in 2005 for having concensual sex. If foreign law helps elucidate that, all the better.

While you should know I certainly am no originalist, I was just trying to distance myself, as a non-originalist, from that sort of paradigm. I don't understand how you believed my comments to be deliberately misrepresentative. It is getting increasingly funny every time you rant against me as some sort of reactionary conservative.
3.20.2006 5:10pm
David M. Nieporent (www):
See, this is where I think you're morphing into the moral relatavist. Yes, of course Judges pick evidence that supports their positions. It's an essential part of their jobs.

I would suggest that this puts the cart precisely before the horse (but accurately reflects the process of some judges). Their job is to pick positions supported by the evidence, not evidence which supports their positions.

Your assumption, though, is that they do this in order to overcome what deep down they actually recognize the law to be.

I think that's a little unfair to them. My assumption is that they believe deep down that the law is whatever they say it is. I'm not accusing them of dishonesty; I'm accusing them of thinking that they are wise solons more suited to deciding what the law should be than those who wrote the laws or those who elected those who wrote the laws.


As for your assessment that:

Rather, it is that liberty "is" something different than it was 200 years ago.

I think we've reached an impasse on the validity of that position. But assuming arguendo that you're right, that takes us up to, but doesn't answer, the question of what "liberty" or "due process" is now, and who gets to decide that. (And that's really where this thread (and its focus on foreign law) starts, anyway.)

If "liberty" means something different now, does it mean what most of the public now thinks it means? What the judge who is hearing the case thinks it should mean? What foreign judges hearing different cases about different statutes/treaties/constitutions think that those documents mean?


Please keep in mind that I do not take this view "because I like the 18th century more." Although that's certainly true in the area of economic regulation, on the "cultural issues" that more strongly divide the U.S. polity, I come down, generally speaking, on the ivy-league-educated-pointy-headed-liberal-elitist side. I side with Clarence Thomas in thinking that the Texas law was "uncommonly silly" (to put it mildly.) But I think that judges who substitute their policy preferences for the law -- and particularly for the constitution -- ultimately present a greater danger to liberty than bad laws do.

Thanks to Earl Warren and William Brennan, liberals have a tendency to think that it only works one way -- that judges only substitute in their personal preferences in order to expand liberty in ways liberals like. But there's no guarantee that this trend will be permanent.
3.20.2006 5:15pm
Kovarsky (mail):
David,

What did "liberty" mean 200 years ago? To whom did it mean it? What sorts of rights does it include? Does it imply a test for those rights? If it does not provide a test for those rights, how are we to honor that meaning? But if we are to use a test to honor that meaning, where do we get it in the consitution?

If you can answer those questions for me, then I'll be an originalist.
3.20.2006 5:28pm
Cornellian (mail):
In this sence, I think words like "liberty" were specifcally meant to be pliable types of tests that would have different results over time. It's not that we're saying "liberty" actually "means" something different than it did 200 years ago. Rather, it is that liberty "is" something different than it was 200 years ago. I don't think the Constitution was intended to make liberty forever remain the same over the coming centuries. In fact, I think they specifically did not. That's why I think applying "originalist" principles to these terms is so wrong.

Prof. Glenn Reynolds wrote a good article on this recently, the gist of it being (if I recall correctly) that what is today claimed to be "originalism" is not, in fact, original intent. He's making the same point you are, that this idea that originalism is a sort of seance in which you channel the Framers (or people living at that time) and ask them to decide the case is not how the Framers intended the Constitution to be read.

The way I'd put it is that that sort of originalism confuses original intent with original outcomes. For example, suppose the equal protection clause prohibits discrimination on the grounds of gender that fails a rational basis test. Suppose the Supreme Court in 1870 upholds a state statute prohibiting women from practicing law. Suppose the Court's rationale was that the statute wasn't irrational because women were mentally incapable of practicing law without suffering stress that would impair their child bearing capacity (sounds absurd today but would have seemed perfectly reasonable in 1870). Now suppose the same issue comes before the Court today. The Justices in 1870 were all contemporaries of the passage of the 14th Amendment and as close to first hand knowledge of original understanding as anyone. Does this mean deciding the case differently today is some kind of judicial activism and a flagrant disregard of originalism? Of course, not, it is perfectly consistent with original understanding to reach the opposite conclusion today. Rational basis (like many constitutional tests) is a heavily fact specific inquiry, and there is nothing wrong with recognizing that the facts as we know them today (women are in fact capable of practicing law) are different and that these different facts lead to a different outcome. If would be a greater offense against the judicial function to do otherwise.
3.20.2006 5:37pm
Marcus1 (mail) (www):
Kovarsky,

I know you're not an originalist or a conservative. I ranted at you, though, because you endorsed the idea that there is a prevailing liberal view which advocates judicial cherry picking to reach liberal results. Not only that, but you then attributed this view to me. Why? Because you said that's how my initial statement "sounded."

As I said, it only sounds that way if you are either a right winger, or somebody who has bought into the right-wing rhetoric. The odd thing was that you apparently recognized that such a view was not what I meant, but you attributed the view to me anyway, saying, "sorry," but that's how it came accross. I appreciate that you're trying to distance yourself from the view, but you might have anticipated that doing so by pawning it off on me wasn't exactly going to be appreciated.

And again, I don't think it sounded that way at all. I could equally have said, "I don't care if we had slavery for 200 years, I'd still say it violates the Constitutional right to due process." The idea that this somehow involves cherry picking or ignoring the Constitution is an idea based purely in false Republican rhetoric. I already elaborated on this, though, so I won't make the specific textual argument again.

Incidentally, I'd much rather speak cordially, but I interpreted your statement as a cheap shot. I apologize if I was incorrect.

David Nieporent,

"Their job is to pick positions supported by the evidence, not evidence which supports their positions."

Of course I completely agree. I simply meant to note that after they do this, they will seek out more material to support their position so they can make the strongest case. As in, they'll put the cart after the horse, where it belongs.

So why is it Ginsburg doesn't cite the Taliban's jurisprudence to help determine what liberty means? Well, she might, if we were doing something that put us more in line with the Taliban than it did with Western Europe. Or maybe if even the Taliban didn't execute people under 18 that would be interesting evidence too. In any case, I think we all recognize that certain countries have more moral credibility than others, and thus, that their policies carry different persuasive weight. The point with showing what is done in other industrialized countries isn't meant as a scientific survey of how many countries take a position. It's simply because, in context, the example may tend to support a particular point. Thus, I find the criticism that she is unscientific in her choice of countries not particularly persuasive, and again, I see no reason why such examples are inappropriate in considering abstract questions about what is just and fair.

If "liberty" means something different now, does it mean what most of the public now thinks it means? What the judge who is hearing the case thinks it should mean? What foreign judges hearing different cases about different statutes/treaties/constitutions think that those documents mean?

I think these questions reflect more rhetoric than anything else. Again, this stikes me as relativism. I think liberty means pretty much what the dictionary told me -- something about autonomy and being free from arbitrary infringement. Now, what do I think judges should consult in deciding what is an arbitrary infringement on autonomy under specific circumstances? Well, pretty much the things they currently consult. That includes their personal judgment about what is right and wrong (they are, after all, judges), considerations perhaps of what the law was originally intended to do (but not falsely limited to a particular outcome that Madison would have reached), how society in general feels about an issue, and really whatever else seems relevant. Again, though, this doesn't mean making the law up. It means deciding, in a reasonable way, what constitutes "liberty" under specific circumstances. I think a good judge would consult many different things in making that decision.

See, the thing is, that if this wasn't what our framers wanted, they wouldn't have used words like "liberty" or "due" process. They'd have said "no physical restraint without a trial with a judge and 12 jurors" or something similarly specific. But they didn't -- they used broad phrases, letting future generations decide what was "due" under the circumstances. Does this give judges discretion? Yes. Does it make them kings? Hardly. But it doesn't require them to ignore all influence and simply try to force everything into an issue of constitutional text. Because with a lot of things, the meaning of the text just isn't the issue.

Of course, you'll say that the decisions for future generations should be in the hands of the legislature. And I say, mostly it is. On certain issues of governmental infringements on individual rights, though, I think the courts play a very important role in preserving our Constitutional system.
3.20.2006 11:40pm
Marcus1 (mail) (www):
Cornellian,

Definitely, we're on the same page.
3.20.2006 11:40pm