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Foreign Law and the Exclusionary Rule:
A lot of VC readers are familiar with the debate over the use of foreign law to interpret the Bill of Rights. It's interesting that most discussions of this issue (not all, but most) overlook a prominent historical example: the use of the exclusionary rule for state violations of the Fourth Amendment, in which foreign law played a role in initially leading the Supreme Court to reject the use of the exclusionary rule under the Due Process clause.

  The key case is Wolf v. Colorado, 338 U.S. 25 (1949), which held that the Fourth Amendment was applicable to the states through the Due Process clause but that its exclusionary rule was not. Doctrinally speaking, the question was whether the exclusionary remedy was "implicit in the concept of ordered liberty" such that it was required under the Due Process clause to be applicable to the states. Justice Frankfurter ruled that it was not, based in part on international practice:
[T]he immediate question is whether the basic right to protection against arbitrary intrusion by the police demands the exclusion of logically relevant evidence obtained by an unreasonable search and seizure because, in a federal prosecution for a federal crime, it would be excluded. As a matter of inherent reason, one would suppose this to be an issue to which men with complete devotion to the protection of the right of privacy might give different answers. When we find that in fact most of the English-speaking world does not regard as vital to such protection the exclusion of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right.
(emphasis mine) Justice Frankfurther then added an Appendix to the Wolf decision listing the "English-speaking" jurisdictions and citations to their courts' rejection of the exclusionary rule. Here is the Appendix:
JURISDICTIONS OF THE UNITED KINGDOM AND THE BRITISH COMMONWEALTH OF NATIONS WHICH HAVE HELD ADMISSIBLE EVIDENCE OBTAINED BY ILLEGAL SEARCH AND SEIZURE.

AUSTRALIA Miller v. Noblet, (1927) S.A.S.R. 385.
CANADA ALTA. Rex v. Nelson, (1922) 2 W.W.R. 381, 69 D.L.R. 180.
MAN. ex v. Durousel, 41 Man. 15, (1933) 2 D.L.R. 446.
ONT. Regina v. Doyle, 12 Ont. 347.
SASK. Rex v. Kostachuk, 24 Sask. 485, 54 Can.C.C. 189.
ENGLAND See Elias v. Pasmore, (1934) 2 K.B. 164.
INDIA ALL. Ali Ahmad Khan v. Emperor, 81 I.C. 615(1).
CAL. Baldeo Bin v. Emperor, 142 I.C. 639.
RANG. Chwa Hum Htive v. Emperor, 143 I.C. 824.
SCOTLAND See Hodgson v. McPherson, (1913) S.C.(J.) 68, 73.
  Twelve years later, the Supreme Court overruled Wolf in Mapp v. Ohio, 367 U.S. 643 (1961), and held that the exclusionary rule was applicable to the states. Strikingly, however, Mapp v. Ohio completely ignored international opinion and international practice. It looked only inwardly, closing its eyes to what Justice Ginsburg has called "the experience and good thinking foreign sources may convey." (Note also that while Frankfurter focused on "English-speaking" nations, he would have reached the same result by looking at all countries; as far as I know, the United States is still the only country in the world with a mandatory suppression remedy for search and seizure violations.)

  Of course, the number of people who want the Supreme Court to rely on foreign law in the interpretation of the Due Process clause and also want a return to Wolf v. Colorado could fit in a phone booth, with room left over for an offensive tackle to enter the phone booth and make a call. But it strikes me as an interesting example.
Bruce:
Yet more evidence that when people criticize reliance on "foreign law," what they really have in mind is French law.

Where's "Cal."?
10.10.2006 4:19pm
AF:
Akhil Amar would be in that phone booth.
10.10.2006 4:36pm
andy (mail):
What exactly is the purpose of looking to foreign law? If one is an originalist, he would look at what the american people ratifying the constitution/amendments thought the language meant at the time of the ratification. If one looks to current meaning, he would look to what the american people believe the language means today.

Under what interpretive methodology do the views of foreigners' construction of phrases similar to that found in the bill of rights hold weight?

Of course, if the american people understand the language to incorporate foreign views, that would be one thing, and there is good evidence that the american people, at ratification did look to foreign law-- specifically, english common law. But i struggle to accept the suggestion that the american people understand "due process" or whatnot to have the meaning that Ugandans whom they have never even met understand the phrase to comprise.
10.10.2006 4:40pm
sbw (mail) (www):
Are we talking here of foreign law or foreign logic?

It seems weak to say because it's law in Upper Volta (Get out your old map) it should be law here. But isn't it reasonable to say that Judges in Upper Volta fashioned a compelling argument that fits in well with our own jurisprudence?
10.10.2006 4:47pm
John (mail):
Why not look to foreign law? If you're willing to say the Civil War amendments shoveled the entire Bill of Rights onto the states by implication, what will stop your reasoning?

Emerson said, "A foolish consistency is the hobgoblin of little minds." And we know our Supreme Court justices have big minds.
10.10.2006 4:48pm
David Krinsky (mail):
It's an interesting anecdote, but I don't think it tells us much. Contrary to caricature, proponents of the use of foreign precedents don't argue that they should always (or ever) be controlling, much less that they should be used or rejected based on the results they lead to.
10.10.2006 4:57pm
CJColucci:
I'd be willing to bet that Supreme Court justices, in their younger days, padded a term paper or two. Leave no index card behind! I suspect we've all done it. They still do it. Big deal.
10.10.2006 5:07pm
happylee:
I guess the question is: are we unique? If no, let's take note of the reasoning of Russian, Korean, Chinese Judges and other progressive jurists from all over the world. If yes, who gives a rat's poop what dem dar furriners think?
On another note, regarding fee speech, just because it's accepted within Europe that suppression of speech is honky dory, doesn't mean a shred of that reasoning should be used to interpret our first amendment, even if the rest of the world agrees with Europe on this point.
Fascism and Communism were the rule almost everywhere on the globe in 1939. Should we have given FDR Il Duce or Der Fuhrer powers? (Some say we came darn close...) Would we now be better off? Is it okay, in hindsight, that we maybe stood apart from the entire world on certain issues? No? Yes? Why?
10.10.2006 5:11pm
A.B. (mail):
Aren't all of these places with law based on the Common Law tradition? So Korea and China would seem to be beside the point. Or is Common Law out too, as being foreign?
10.10.2006 5:26pm
Thales (mail) (www):
"Why not look to foreign law? If you're willing to say the Civil War amendments shoveled the entire Bill of Rights onto the states by implication, what will stop your reasoning?"

There is actually a respectable amount of literature arguing that the privileges or immunities clause of the 14th amendment did in fact incorporate the Bill of Rights, and not "by implication" but by plain meaning. In fact, this literature (by Akhil Amar and others) seems to be better reasoned and researched than the earlier contrary views taken by Raol Berger, Charles Fairman et al. Of course this is a completely separate issue from that of looking to foreign law for persuasive argument or binding precedent, as the 14th Amendment is most assuredly a domestic enactment.
10.10.2006 5:28pm
wm13:
Well, David Krinsky, you raise an interesting point. Has any proponent of the use of foreign precedents sketched any principled basis for deciding when such precedents are to be used? A basis which leads to striking down capital punishment for minors while keeping the exclusionary rule? Or are the courts and the academy giving us an unprincipled hodge-podge?

BTW, it's a bit of a cop-out to say something isn't "controlling": if something is influential at all, there must be some set of facts where that influential factor is controlling.
10.10.2006 5:31pm
pallen:
A.B.: common law was incorportated by many states after the revolution, so it is not foreign law, but references to British decisions after the incorporation would be considered foreign citations.

I've wondered: how can search and seizure provisions stand as useful without an exclusionary remedy? Certainly at the Federal level it could be classified as a cause of impeachment: "And he has allowed the rampant disregard among his officers for the 4th amendment" but as a practical matter the justice department is too decentralized for such a remedy to be reasonable...
10.10.2006 5:34pm
Tom R (mail):
> "I guess the question is: are we unique? If no, let's take note of the reasoning of Russian, Korean, Chinese Judges and other progressive jurists from all over the world. If yes, who gives a rat's poop what dem dar furriners think?"

Yes, there's no moral difference as regards legitimacy between (say) present-day England, Canada or Germany on the one hand and Russia or [scil. North] Korea on the other.

Congratulations, you've just re-invented the United Nations.

As a non-American I do find it strange that US jurists who are firmest in rejecting any use of foreign law (not even looking at the stuff for useful suggestions when US law is unclear), are often most insistent on the relevance of pre-1776 English law and practice, in the name of originalism.
10.10.2006 5:50pm
Stephen C. Carlson (www):
It's really just a guess, but "Cal." might be Calcutta.
10.10.2006 6:02pm
Texas Lawyer:
State courts regularly look at the laws of the other states in determining issues, even issues involving their state constitutions. Why isn't Idaho as foreign to Missouri as Australia is to the US? The states share a common legal heritage, so it makes sense to look to the other states. Similarly, common-law countries share a common legal heritage, so it makes sense for them to look to each others laws.
10.10.2006 6:07pm
Steve:
I've wondered: how can search and seizure provisions stand as useful without an exclusionary remedy?

I've wondered that too, but the fact is, plenty of other liberal democracies get by just fine without an exclusionary rule. Of course, if we pretend like it's anathema to even talk about what other countries do, then we'll never be able to decide if we find their logic persuasive.
10.10.2006 6:12pm
Chris 24601 (mail):
Scalia cites foreign criminal procedure in the Ring-retroactivity case, Schriro v. Summerlin, 542 U.S. 348, 356 (2004): "[T]he mixed reception that the right to jury trial has been given in other countries ... though irrelevant to the meaning and continued existence of that right under our Constitution, surely makes it implausible that judicial factfinding so 'seriously diminishe[s]' accuracy as to produce an ' "impermissibly large risk" ' of injustice."

I like sbw's suggestion that we look at the reasoning of foreign cases. I think that they should get something like Skidmore deference. Foreign decisions, "while not controlling upon [U.S. law] by reason of their authority, do constitute a body of experience and informed judgment to which [interpreters of the American Constitution] may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore v. Swift &Co., 323 U.S. 134, 140 (1944).

See here for more on my Skidmore-modeled views of constitutional interpretation.
10.10.2006 6:12pm
Greedy Clerk (mail):
If you're willing to say the Civil War amendments shoveled the entire Bill of Rights onto the states by implication, what will stop your reasoning?


What an absurd comment? It is beyond any reasonable dispute that many people, including Congressman who ratified the amendment, understood the 14th Amendment -- in particular the P&I clause thereof -- to incorporate the Bill of Rights against the states. There is also evidence that many people, including Congressman who ratified the amendment, disagreed. Thus, it is not illogical at all to believe this, and your whole comment is based on a sadly ignorant understanding of constitutional history.
10.10.2006 6:20pm
Justice Fuller:
Greedy Clerk,

Wasn't the pro-incorporation only the view of a small minority? Consider,
Between the incorporation of the Fourteenth Amendment into the Constitution and the beginning of the present membership of the Court-a period of 70 years-the scope of that Amendment was passed upon by 43 judges. Of all these judges, only one, who may respectfully be called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments theretofore limiting only the Federal Government, and that due process incorporated those eight Amendments as restrictions upon the powers of the States. Among these judges were not only those who would have to be included among the greatest in the history of the Court, but-it is especially relevant to note-they included those whose services in the cause of human rights and the spirit of freedom are the most conspicuous in our history. It is not invidious to single out Miller, Davis, Bradley, Waite, Matthews, Gray, Fuller, Holmes, Brandeis, Stone and Cardozo (to speak only of the dead) as judges who were alert in safeguarding and promoting the interests of liberty and human dignity through law.
Adamson v. California, 1947, Frankfurter, J., concurring.
10.10.2006 6:29pm
Dilan Esper (mail) (www):
OK, so the supporters of the use of foreign law in constitutional interpretation and of the Wolf could fit in a phone booth. What I want to know is this:

1. Can the government attach an electronic eavesdropping device to that phone booth, and

2. Would the eavesdropped conversations be admissible?
10.10.2006 6:35pm
AyaK:
For what it's worth, there are five British jurisdictions based on common law at issue here: Australia, Canada, England, India and Scotland. The initials of the Canadian provinces are self-explanatory. The three Indian jurisdictions are Allahabad ("All."; court established in 1866), Calcutta ("Cal."; 1862) and Rangoon ("Rang."; 1900). There were actually six Indian court jurisdictions during British rule; the other three were Madras, Bombay and Lahore.

And I've never understood any reason for a controversy about interpreting the Constitution based on precedents in common-law jurisdictions outside the US; it seems to me that the core of the problem in Kennedy's opinion in Roper v. Simmons is his reliance on "international opinion" and an unratified UN convention, not on common law.

For example, Kennedy notes that the UK no longer has the juvenile death penalty. If this decision were rooted in English common law, it would be highly relevant to this issue. But, as Kennedy himself points out, it isn't -- it's based on subsequent statutes:

In 1930 an official committee recommended that the minimum age for execution be raised to 21. House of Commons Report from the Select Committee on Capital Punishment (1930), 193, p. 44. Parliament then enacted the Children and Young Person's Act of 1933, 23 Geo. 5, ch. 12, which prevented execution of those aged 18 at the date of the sentence. And in 1948, Parliament enacted the Criminal Justice Act, 11 &12 Geo. 6, ch. 58, prohibiting the execution of any person under 18 at the time of the offense.

Sorry, but the need for later statutory enactments argues AGAINST Justice Kennedy's claim -- because it makes it clear that UK common law (and, by extension, US common law) did NOT prohibit the execution of minors. That's the problem here: Kennedy's failure to rely on foreign common-law precedents for instruction into the intent of the Constitution.
10.10.2006 6:36pm
Texas Lawyer:
AyaK:

Scotland isn't actually a common-law jurisdiction, though. I believe it's more properly a mixed jurisdiction, incorporating elements of common law &civil law. For example, they don't have contracts, they have obligations, and they don't have tort, they have delict. See Prof. Tetley's article on this. http://www.mcgill.ca/files/maritimelaw/mixedjur.pdf
10.10.2006 6:48pm
pallen:
"are often most insistent on the relevance of pre-1776 English law and practice, in the name of originalism."

No you are mistaken; pre-1776 English law and practice was adopted explicitly by the state legislatures. Therefore, it is not an exception to originalism.

Lets not kid ourselves about the real issue here.
A handful of people (group A) want to elevate the stature of foreign court rulings that expounding more expansive positive rights and more moral indignation over the death penalty. But such citations are opportunistic. Most supporters would agree that foreign law is suggestive, not controlling. Thus citations to it are a bit of scam. Its dressing up an idea as being a case of conservative stare decisis when at best it is an appeal to authority or an appeal to numbers.

"foreign law" opponents don't really oppose borrowing logic. They oppose the idea that reusing a logical argument used else where consitutes a citation as that term has been commonly used.

A sound argument is not an opinion, it is a fact and ought not to be cited except to allow the author to abridge reproducing the argument. i.e., much as you would cite a mathematical theorem.

Many foreign law citations are not done merely to abridge an argument but to cloak naked opinion in authority. i.e., to treat it as a premise.

All this uproar is because other people (group B) are calling group A on the bait and switch that's being performed. The trouble is that group B is using the same term that group A has choosen to perform their scam, making group b look ridiculous. Whereas group b's substantive position is quite reasonable: law by majority decision is something that the political branches should do, judges should shape the law by reasoning.
10.10.2006 6:49pm
margate (mail):
The original "Originalists" -- the framers -- rode all over the east coast with a copy of Blackstone's Commentaries in their saddle bags. (Maybe not literally. But certainly they depended heavily on Blackstone.)

So if one wants to understand, for example, the Ex Post Facto clauses of our Constitution, read Blackstone's. See, e.g., Calder v. Bull, 3 U.S. 386 (1798).

Or if you want to understand the "Piracy" clause of Art. I, Sec. 8, pull out Blackstone's and Grotius. See, e.g., U.S. v. Smith, 18 U.S. 153 (1820).

It doesn't get more "foreign" than Blackstone and Grotius.

That's not to say that current foreign (or international) law should inform the SCOTUS's view of the Constitution -- except insofar as the "law of Nations" is concerned in Art. I, Sec. 8, cl. 10.

But foreign law seems a crucial building block to an original understanding the Constitution.
10.10.2006 6:53pm
Greedy Clerk (mail):
Wasn't the pro-incorporation only the view of a small minority?

I am frankly not sure. My point, however, was neither that incorporation is correct or that it is consistent with the original intent of the "framers" of the 14th Amendment. My point was that it is not at all absurd, as the commenter clearly implied, to believe that the 14th Amendment incorporated the Bill of Rights against the states -- indeed, several people who voted for the Amendment at the time believed that it did.

For what it's worth, I believe that the Privileges and Immunities Clause clearly does incorporate the Bill of Rights against the States. That was my understanding of it when I first read the 14th Amendment in full in law school and was trying to figure out why the Bill of Rights were applied against the States. At the time, I did not know anything about the incorporation debate, or even that there was one. I think that every clause of the first eight amendments should be applied against the states; although the US Supreme Court disagrees with me.
10.10.2006 6:57pm
David Krinsky (mail):
wm13:

The short answer to your question is that I don't know; certainly scholars such as Vicki Jackson have tried, but I'm not familiar enough with the details of their work to judge whether they've succeeded.

But it seems to me that asking for a principled (and comprehensive) basis for deciding when such precedents are and are not to be used is equivalent to asking for a principled and comprehensive basis for deciding how precedent is to be applied more generally--surely a challenging if not impossible task.

It is perhaps unsatisfying (or at least incomplete) to respond that foreign precedents should only be used when they're relevant--that is, either when a foreign court applies persuasive reasoning to an analogous legal problem, or when U.S. law somehow incorporates international law or custom by reference. But my own view is roughly this--at the very least, I see no basis for a per se rule against the citation of foreign precedents, but no similar rule against the citation of dissents, or against the citation of lower or state courts by the Supreme Court on points of federal law.

As to my invocation of what is and isn't controlling: by that I mean that rarely, if ever, is it appropriate to say "these foreign courts have decided X; therefore we should decide X too." There has to be some other reason why we should care. A corollary, though, is that when a foreign decision is cited as support for a proposition, it will seldom be the only support for the proposition.

As to the example here, there may well be some good reason why we should follow the rule of Mapp but also the rule of Roper, even though the latter but not the former accords with a perceived consensus among foreign courts. My point is that it's not real helpful to implicitly say, "Ha! See what foolish results following foreign precedent brings!" when no one, not even the most ardent advocates of the citation of foreign law, has suggested that we should always do so. (I'm not saying, incidentally, that Prof. Kerr was implicitly levying this criticism. But it's a danger with this kind of anecdote.)
10.10.2006 7:19pm
Per Son:
As for foreighn law, remember in Bowers v. Hardwick, Burger stated: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization." Many thought it was wrong that foreign law was discussed (though not the basis of the decision) in the Lawrence decision. Thus, did Burger think that foreign law is only to be used as a sword against rights?
10.10.2006 7:51pm
Rodger Lodger (mail):
When people start arguing the legitimacy of citing foreign law, or looking to foreign reasoning, or counting foreign noses, I always think of the liberals who cite the Pope on anti-capital punishment but ignore him on anti-abortion. Cherry-picking is a useful term.
10.10.2006 8:09pm
Rodger Lodger (mail):
When people start arguing the legitimacy of citing foreign law, or looking to foreign reasoning, or counting foreign noses, I always think of the liberals who cite the Pope on anti-capital punishment but ignore him on anti-abortion. Cherry-picking is a useful term.
10.10.2006 8:09pm
Per Son:
Rodger Lodger:

I did not know that liberals cite to the pope very often.

That being said, I guess many people cherry pick - and it is hardly a liberal/conservative thing to not agree 100% with someone. Many conservatives are against Bush's federal spending, but support him on the social issues. Are they hypocrites or cherry pickers? Probably not. Instead, they just agree with some stuff and disagree with other stuff.
10.10.2006 8:14pm
DJR:
Yet another reason to bring back the solo blog.

There is a fairly easy way to distinguish between using foreign law in interpreting the 8th versus the 4th Amendment: The text of the 8th, which prohibits cruel and unusual punishment, invites comparisons with other jurisdictions, and the 4th does not.

Implicit in the word "punishment" is a jurisdiction that punishes those who disobey the laws. The word "unusual" presupposes some sort of survey of those jurisdictions to figure out whether the punishment under examination is common or not.

One could argue that whether a search &seizure is "reasonable" is subject to the same sorts of comparisons; however, unlike "unusual" "punishment" whether a search is reasonable need not be compared to what other jurisdictions do. The law is riddled with descriptions of what is "reasonable" that are not connected to what any particular country does. Whether a search is "unreasonable" is more akin to whether punishment is "cruel" as opposed to "unusual." If it suddenly turned out (by universally accepted proof) that current lethal injection methods actually cause the person to be in a weeks-long state of utter agony, we would have no trouble calling that "cruel," regardless of whether any jurisdiction still chose to employ the technique. Similarly, a search for drugs by vivisection can easily be called unreasonable without surveying other countries' views on the subject.

So the principled way of using foreign law for the 8th and not the 4th is to look to the text of the Constitutional provision to determine whether it explicitly invites one to look to other jurisdictions.

(I acknowledge the counterargument that one could look to the various states to determine if something is unusual, and skip foreign jurisdictions, but that is outside the scope of the question).
10.10.2006 8:16pm
pallen:
DJR writes: "Implicit in the word "punishment" is a jurisdiction that punishes those who disobey the laws. The word "unusual" presupposes some sort of survey of those jurisdictions to figure out whether the punishment under examination is common or not."

Oh come now; you're begging the question. The word "usual" could just as well mean "unusual for the jurisdiction". See if the form of punishment is known ahead of time, I can choose to "stay out of dodge"--really when the punishment is too unique it begins to wrankle equal-protection.
10.10.2006 8:37pm
AyaK:
Texas Lawyer:

I quickly looked at Prof. Tetley's discussion of Scotland -- but it appears that English common law has predominated in Scotland since the mid-1800s, despite the enduring difference in terms. For example, the landmark decision in the UK on negligence is the 1932 "snail in the bottle" case of Donoghue v. Stevenson, a House of Lords decision on a case originating in Scotland, which contains the comment: "It was there held that in determining the question of the liability of the manufacturer to the consumer there was no difference between the law of England and the law of Scotland - and this is not now disputed."

Similarly, there appears to be no difference between British and Scottish law related to the issue in Hodgson v. Macpherson ... at least until post-Wolf.

Anyway, I presume Frankfurter knew more about Scottish law than any of us, and he included it in his common-law precedents, so I'll side with his view.
10.10.2006 8:44pm
TomHuff (mail):
A little tangential, but this post reminded me of the SCOTUS ruling in _Sanchez-LLamas v. Oregon_ last June, holding (as best I can tell) that violation of a foreign national's Article 36/Vienna Convention consular notification rights does not entitle that foreign national to an exclusion remedy. I seem to recall the Court going through a discussion about how unique the exclusion remedy is to American law.

This made me wonder -- have other countries eventually molded their own versions of the exclusion rule, or is it still pretty uniquely American? And do other countries have an exclusion remedy (or any sort of meaningful sanctions) for violation of Article 36 rights?
10.10.2006 9:56pm
andy (mail):
"The word "unusual" presupposes some sort of survey of those jurisdictions to figure out whether the punishment under examination is common or not."


So if every other country (except the U.S.) decides to chop off the hands of anyone who steals, then that punishment is no longer 'unusual' within the meaning of the 8th amendment? Give me a break. The courts should not outsource the job of interpreting *our* constitution to foreigners.
10.10.2006 10:04pm
Milhouse (www):
DJR: Nowadays "unusual" is a synonym for "uncommon", but was it so in the late 18th century? I'm no expert on Georgian usage, but I don't think so. My impression is that it meant something more like "inappropriate", and had nothing to do with how often people did whatever it was.
10.10.2006 10:20pm
Mark Seecof (mail):
Let us not forget "foreign law and the Miranda warnings." The U.S. Supreme Court basically adopted the English "Judges' Rules" on warning suspects about to be interrogated in Miranda v. Arizona, 384 U.S. 436 (1966) (see text calling Footnote 57). I for one have no objection to our courts learning a thing or two from the English common-law courts, where the things they learn offend neither our own laws and precedents nor our Constitution (though I would strenuously object to our courts taking anything out of the English statute book after 1776--and frantically object if the statute were later than 1910 or so).
10.10.2006 10:40pm
Gmmck1955 (mail):
Saw the mention of Calcutta and remembered stumblng across this in an old Kansas Supreme Court opinion:

In a petition for a rehearing counsel for the plaintiff criticises the citation by this court of Caspersz on Estoppel as follows:
""The author of this work was a barrister at law, advocate of the High Court, Calcutta, and the author does not cite one single modern American authority to sustain the principle of law quoted in the opinion in this case. We do not believe this court prefers to follow the law of India, rather than the law announced by the several states, as well as by American text-writers.""
This criticism shows fine loyalty to the home team, but it does not meet the question whether or not this rank outsider gave a fair answer to the question propounded in the former opinion:
""Why is a person estopped to deny a recital in a contract?"" Moon v. Moon
103 Kan. 179, 173 P. 9
Kan. 1918.
10.11.2006 12:04am
Cornellian (mail):
What exactly is the purpose of looking to foreign law? If one is an originalist, he would look at what the american people ratifying the constitution/amendments thought the language meant at the time of the ratification.

It is quite often not at all obvious what was meant by a particular provision in the Constitution from text itself or the historical record. Where the language or concepts used were widely in use throughout the common law world at the time of ratification, why wouldn't caselaw from from that era from other common law jurisdictions be informative as to the meaning of the language or concepts used? That's not at all the same as looking at some Hungarian statute today and grafting the meaning of that onto a US statute.
10.11.2006 1:58am
Jay Myers:
pallen:

I've wondered: how can search and seizure provisions stand as useful without an exclusionary remedy?

You punish the people who actually violated the Constitution instead of punishing the public. Not allowing the evidence to be admitted has mostly served to make the police self-righteously angry at the judges. Illegal searches haven't been eliminated though.

What do you think might happen if officers knew that an unconstitutional search would cost them their careers? Heck, I wouldn't oppose a law making illegal searches a crime punishible by time in prison. The best part of a system that punishes the searchers instead of excluding evidence is that it would also function when no incriminating evidence was found through the unconstitutional search.
10.11.2006 2:13am
Mark Seecof:
Jay Myers: Leaving aside whether the exclusionary rule is good for the public, you do realize that prosecutors will not charge cops for violating citizens' rights, don't you? (Excepting, barely, Idaho v. Horiuchi, most any modern counter-examples you can think of (e.g., U.S. v. Stacey Koon) were political show trials, commenced for motives quite unrelated to upholding the civil rights of the alleged victims. Note that Horiuchi's masters got the charges against him dismissed on the grounds that Federal cops are immune even to unlawful homicide charges, unless brought by their superiors--an action guaranteed never to eventuate. And you expect charges for illegal searches?) Since the Supreme Court has effectively immunized cops to private suits, by what unlikely path would you expect a misbehaving police officer to end up facing a jury?
10.11.2006 3:24am
andy (mail):
"Where the language or concepts used were widely in use throughout the common law world at the time of ratification"

Yeah, those colonialists frequently logged onto westlaw to check out what Hungarian cases said in 1789....

i would think that the historical record is clear that many concepts of the us constitution are taken from the english common law, but i'm not a historian. if the evidence showed that the people had their own idea of "ex post facto" and "bill of attainder" etc. that they did not borrow, in toto, from english common law, then of course the original understanding could trump whatever Blackstone said.
10.11.2006 6:29am
SimonD (www):
My question would just have to be: if the international community of law that Justice Breyer is so fond of deferring to when it suits him, see e.g. Knight v. Florida 528 U.S. 990 (1999) (Breyer, dissenting from denial of cert), disfavors the exclusionary rule - a fortiori if, in fact, "the United States is still the only country in the world with a mandatory suppression remedy for search and seizure violations" - why is a discussion of that fact so signally absent in Justice Breyer's Hudson v. Michigan dissent? Even if, arguendo, one accepts the use of foreign law, how can Justice Breyer expect to be taken seriously when he so transparently ignores transnational norms when they cut against his view?
10.11.2006 11:42am
Seamus (mail):
It is beyond any reasonable dispute that many people, including Congressman who ratified the amendment, understood the 14th Amendment -- in particular the P&I clause thereof -- to incorporate the Bill of Rights against the states.

I suspect you'd be hard pressed to name one such Congressman, given that it was the state legislatures, not Congress, that did the ratifying.
10.11.2006 2:15pm
Young Guy:
What's a phone booth?
10.11.2006 2:56pm
ReaderY:
It's worth mentioning that dissenters to Roe v. Wade and subsequent cases, including Justices Rehnquist and White, used foreign-law examples to demonstrate that many "normal" western democracies had restrictions on abortion, as part of a foreign-law based argument that a right to abortion is not implicit in the concept of ordered liberty.

It's perfectly legitimate to point out that conservatives have used foreign-law arguments when it has suited them.
10.12.2006 12:37am
Broncos:
Tangentially, I recently read that England &Wales have abrogated the Double Jeopardy rule.
10.12.2006 3:26pm
SimonD (www):
ReaderY:
It's worth mentioning that dissenters to Roe v. Wade and subsequent cases, including Justices Rehnquist and White, used foreign-law examples to demonstrate that many "normal" western democracies had restrictions on abortion, as part of a foreign-law based argument that a right to abortion is not implicit in the concept of ordered liberty.
Neither Justice Rehnquist's Roe nor Doe dissents contain citations of foreign law. Rehnquist did not write in Akron, Danforth, Thornburgh, Hodgson v. Minnesota (wherein Scalia's concurrence did not cite foreign law) or Colautti v. Franklin. Neither Scalia nor Rehnquist cited foreign law in Webster. So - citations, please.
10.12.2006 9:00pm