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The Rosenkranz Amendment on Foreign Law:

My post on a proposal by Georgetown law professor Nick Rosenkranz for a constitutional amendment barring the use of foreign law in constitutional interpretation prompted extensive comment. The post was based on a presentation Prof. Rosenkranz made on a panel at the Federalist Society's annual lawyer's conference. Audio and video of the panel are now available here.

To recap the argument, Prof. Rosenkranz proposed a consitutional amendment stating that foreign law should not be used in constitutional interpretation. To be clear on what this proposal entails, it would not bar examination of historical texts, even those from abroad (such as pre-ratification English common law court decisions, Blackstone, etc.) that may help elucidate the meaning of constitutional provisions. It would, however, preclude judges from looking to contemporary sources of foreign law when seeking to discern the meaning of constitutional text. This would not be a new rule of constitutional interpretation, Prof. Rosenkranz argues, but a restatement of the original understanding. As he explains in this paper, "the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states." Like the 9th and 11th Amendments, it would be a restatement of an interpretive rule that had been implicit in the document. However much I am suspicious of constitutional amendments, I think the underlying arguments are important and worth serious discussion.

I should also note that Prof. Rosenkranz was joined on the panel panel by his colleague Vicki Jackson, Yale's Akhil Amar, and the Honorable Frank Easterbrook. All gave interesting remarks, so the whole panel is worth watching (or podcasting).

ProctorOfAdmiralty:
This seems to go against 1) the historical, and very limited, use the SCOTUS has made of international law, and 2) the Constitution's mention of the "law of nations" --i.e., international law (e.g., Art. 1, Section 8)
11.29.2007 12:14pm
Constitutional Crisis (mail):
Are there any other countries that have such a bar?
11.29.2007 12:33pm
BD (mail):
If we are to utilize the amendment process to prescribe the manner in which judges should approach interpreting the Constitution, why on earth limit the project to a ban on foreign sources of law? I would much rather see an amendment specifying that words and phrases used in the Constitution must be construed in accordance to the meaning they had at the time of their incorporation into the Constitution (i.e., an originalism amendment); or an amendment that would specifically prohibit the judiciary from announcing new constitutional rights based on the evolving needs and expectations of society (i.e., a "no-living-Constitution" amendment).
11.29.2007 12:54pm
CJColucci:
A solution in search of a problem.
11.29.2007 12:59pm
Bravo:
BD,

Originalism is indeterminate. Legal historians keep saying this, but conservative lawyers don't want to listen. See Mark Tushnet, Following the Rules Laid Down, Harv. L. Rev. (1977?).
11.29.2007 1:35pm
Steve:
Good time to resurrect this classic post from Eugene.
11.29.2007 1:36pm
tvk:
Well, the refinement takes care of the Seventh Amendment objection, but what about these remaining ones:

1. How to you interpret Congress's power to punish offences on the high seas and against the law of nations? Either you look to the current international law definition of what is a high sea and a law of nations; the historical international law definition; or Congress can define Lake Michigan to be the high seas. (and note if the answer is that we are permanently stuck in 1790, how do you deal with geographic changes?)

2. Similarly, how do you interpret Congress's power to regulate commerce with "foreign nations" if you can't check whether, say, the Phillipines is a foreign nation?

3. And, again, if we are permanently stuck in international law circa 1790, what do you do with the manifold ways of circumventing the provision that "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal" So if New Hampshire decides to grant Blackhawk the right to shoot down aircraft (not a letter of marque circa 1790 since there were no aircraft), that is ok? Or if California decides to declare itself a Soviet Socialist Republic and join the Soviet Union, that is not a "treaty, alliance, or confederation"?
11.29.2007 2:03pm
Joe Jackson:
I have a great deal of respect for Professor Rosenkranz, but I think he is dead-wrong on this one. I can think of at least three flaws that are fatal to his proposal:

1. The kind of willful judge that he is trying to protect against would use a proposed amendment as "proof" that the Constitution currently permits reliance on foreign law. Citation of foreign sources is pretty rare right now. Bringing it to the forefront might actually increase its use.

2. If the amendment fails to be ratified, the same judges will then use that failure as additional "proof" that the people considered the issue and agreed that reliance on foreign sources is permissible. If the upswing in citation of foreign sources did not happen before, it almost certainly would now.

3. Even if the amendment is ratified, a moderately clever judge could simply rely on foreign reasoning without admitting it. We would have the same lawless outcomes, but less openness about it. I fail to see how that would be an improvement over what we have now.
11.29.2007 2:24pm
iNonymous:
I seriously doubt any judge, anywhere, has ever thought, "I'd like to come down for plaintiff, and I think plaintiff's interpretation of the Constitution is reasonable. But a recent decision from the Borgarting Lagmannsrett has dicta suggesting otherwise, so I'll follow that decision instead." In other words, this constitutional amendment will not change how any decision comes down from the Court. It will just lead to somewhat shorter decisiona as citations from those courts are left out.

Strangely, law profs never complain when the Court cites a law review article, even though law review articles are no more binding, and in many cases are far less compelling, than a foreign court decision.

Or, a better example, I recently cited a case from State X to a court sitting in State Y in a case where State Y law applied. No one would ever suggest that this is somehow violating State Y's sovereignty.
11.29.2007 3:18pm
iNonymous(again):
I also wonder how often foreign courts refer to or cite US decisions. Quite often, I would think, given the widespread availability of US jurisprudence over the Internet, our central position in world affairs, and the fact that many educated foreigners (such as judges) speak English.
11.29.2007 3:40pm
Patriotic American:
I for one do not consider foreign law to be binding. Therefore, I am careful never to cite to an opinion written by Judge Kozinski.
11.29.2007 3:47pm
Joe Jackson:
Or, a better example, I recently cited a case from State X to a court sitting in State Y in a case where State Y law applied. No one would ever suggest that this is somehow violating State Y's sovereignty.

Was the court sitting in State X applying the law of State X or State Y?

If the former, I would argue that your case law has little or no persuasive force because it is a court of a different state applying a statute not presently before the court.

If the latter, I would argue that the court should look to the decisions of State Y's courts (assuming there are any) when interpreting State Y's law. Would I use the word "sovereignty"? Probably not, but if there were any State Y case law that was on point, you can bet I would emphasize it to the court. (E.g., "Once again, iNonymous is asking this court to ignore State Y's own cases and instead cites to foreign courts. However, it is a well-established rule that this state's courts are the final arbiters of issues of state law.")
11.29.2007 4:00pm
Brett Bellmore:

Originalism is indeterminate. Legal historians keep saying this


Originalism is not remotely as indeterminate as nonoriginalism; Even a loose constraint is more constraining than no constraint at all, which is what non-originalist theories provide in practice.

And I think it might be quite revealing to poll legal historians, and check whether a conviction that originalism is indeterminate has any correlations to one's political leanings; It's quite easy to find documents indeterminate if you don't like what they say.
11.29.2007 5:37pm
Dilan Esper (mail) (www):
In addition to the other criticisms, I don't buy that there was any original understanding that foreign law would never be consulted in interpreting the Constitution. (In actuality, the framers were much closer to the "decent respect for the opinions of mankind" school that would have no problem consulting foreign law sources.) Indeed, nobody EVER made an issue of this until the Supreme Court cited foreign law a few times in support of decisions conservatives didn't like. Since then, the conservative movement has played on latent xenophobia and drummed this up as an issue.

So if there are policy arguments against citation to foreign laws, make them. But don't give me any BS that this has anything to do with the framers' intent.
11.29.2007 5:41pm
Russ (mail):
I might be kooky here, but didn't we fight a revolution to get away from the rule of foreign law?

Only lawyers could look at the Constitution and see the laws of France and the Phillipines.
11.29.2007 5:43pm
Mark Field (mail):

Originalism is not remotely as indeterminate as nonoriginalism; Even a loose constraint is more constraining than no constraint at all, which is what non-originalist theories provide in practice.


Oddly enough, I think you have it exactly backward. It's at least plausible to think we might be able to confirm what phrases mean to us today. We have no hope of doing that as of 1790.

Any theory of interpretation, consistently applied, constrains the user. Originalism offers no more constraint than any other theory, and less than some others.
11.29.2007 5:52pm
Dilan Esper (mail) (www):
I might be kooky here, but didn't we fight a revolution to get away from the rule of foreign law?

Only lawyers could look at the Constitution and see the laws of France and the Phillipines.

No, we didn't fight a revolution over the citation of foreign law, we fought a revolution over foreign SOVEREIGNTY.

Indeed, maybe part of the problem here is that many on the right don't understand the distinction between the two.
11.29.2007 6:07pm
Habeas Clerk:
iNonymous has it exactly right. Foreign law, at least in the conext that is used here, is not cited as binding precedent; it's meant to be persuasive. And it's only persuasive to the extent that it has the power to persuade as a matter of logic, reason, and experience. In other words, if another jurisdiction (state or foreign country) has a similar legal system and has confronted a similar legal question, why not see if the reasoning makes sense?
11.29.2007 6:12pm
Juggernaut (mail) (www):
or an amendment that would specifically prohibit the judiciary from announcing new constitutional rights based on the evolving needs and expectations of society

BD: Or a prohibition on the judiciary from announcing limits on constitutional rights based upon the evolving "needs" and expectations of society.

It's one thing to expand individual rights by interpretation, but to shrink them is worst outcome of all. After all, those pesky first and second amendments, they're anachronisms. No one foresaw [fill in the blank]
11.29.2007 7:19pm
Brett Bellmore:

Any theory of interpretation, consistently applied, constrains the user.


Not in the sense of being determinate in the face of passing time. Originalism, whatever indeterminacy it may suffer, will presumably arrive at the same, albeit sometimes vague, conclusions, today, or 50 years from today. Non-originalist theories, without any real exception, lack that virtue. In fact, they aim to avoid it. And it is a virtue, the chief point of a Constitution being harder to change than laws is that it will remain unchanged in the face of momentary passions. (Prolonged passions can amend a Constitution.)

A windsock may, at any given instant, be more determinate than a compass, but all it tells you is which way the wind is blowing.
11.29.2007 7:22pm
MarkField (mail):

Originalism, whatever indeterminacy it may suffer, will presumably arrive at the same, albeit sometimes vague, conclusions, today, or 50 years from today.


I doubt this. People seldom view the past except through the lens of their own experience and desires.

And it is a virtue

This, ultimately, is the crux of our disagreement.
11.29.2007 7:46pm
JBL:
This thread points out another problem with the proposed amendment. Its passage would result in a large amount of judicial and academic wrangling over exactly what it means, without adding substantive clarification on any other legal issue.
11.29.2007 8:13pm
Cornellian (mail):
This thread points out another problem with the proposed amendment. Its passage would result in a large amount of judicial and academic wrangling over exactly what it means, without adding substantive clarification on any other legal issue.

I suppose if you're a law professor, that's not a bug, it's a feature.
11.29.2007 8:35pm
Aleks:

Re: A windsock may, at any given instant, be more determinate than a compass, but all it tells you is which way the wind is blowing.

And a compass simply tells you where the nearest source of magnetic attraction is located. Often you can assume this is the Earth itself, but that is not a given. And no, originalism will not arrive at the same result always because the wording of the Constitution itself is vague in places. There were as many different definitions of "cruel and unsual" a there were English speaking in 1789. And what are those unenumerated rights that the 9th Amendment refers to?
11.29.2007 9:16pm
Ben P (mail):

Was the court sitting in State X applying the law of State X or State Y?

If the former, I would argue that your case law has little or no persuasive force because it is a court of a different state applying a statute not presently before the court.


Obviously I can't speak for his situation, but are you seriously suggesting the argument (in state X courts) that "State Y has this law that has the same text, and interpreted it this way for these reasons" has no persuasive value?

Moreover, what if it's a commonly adopted law (for example a provision of the UCC or a rule of evidence) and the argument is "Of the 47 states to have this provision, 44 have adopted this interpretation for these reasons."
11.29.2007 10:55pm
Brett Bellmore:
There were as many different definitions of "cruel and unsual" a there were English speaking in 1789.


And in 2050, there will still have been exactly as many different definitions of "cruel and unusual" back in 1789. Where the Constitution is vague, an accurate interpretational technique will report exactly that: That it's vague. Not produce some precise meaning suited, according to the tastes of the judge using it, for the moment.
11.29.2007 10:59pm
Randy R. (mail):
I would like to know specifically which cases Prof. R has in mind that rely upon foreign law.

And I would like to know what sort of decisions or results he is afraid will result absent this proposed amendment, and whether he thinks this amendment wold prevent such outcomes.
11.29.2007 11:37pm
Joe Jackson:
Obviously I can't speak for his situation, but are you seriously suggesting the argument (in state X courts) that "State Y has this law that has the same text, and interpreted it this way for these reasons" has no persuasive value?

No, I am not suggesting that. There is no point in either my post or the one I was responding to where it says that State X and State Y have identical statutes.

We are now drifting far away from the initial post. New Mexico and Arizona courts might consider the "persuasive force" of each others' decisions when dealing with identically-worded statutes that were passed at a similar time and have similar legislative history. (Even in such a situation, New Mexico courts should look first to decisions from other New Mexico courts.) So what? That has nothing to do with the cases or the Justices that Rosenkranz is talking about. In Roper, Justice Kennedy cited the "opinion of the world community." Was the "world community" applying the Eighth Amendment? Did any foreign courts interpret "the same text" as the Eighth Amendment? Of course not. I am not going to quibble over the finer details of tertiary hypotheticals when the real-life examples are much more egregious.
11.29.2007 11:57pm
affe (www):
Maybe a silly question, but, since Louisiana follows the civil law system, how can civil law be looked upon as a "foreign" source of interpretation ?
11.30.2007 10:06am
MDJD2B (mail):

And what are those unenumerated rights that the 9th Amendment refers to?


Possibly those recognized as being inherent in English Common Law as it existed at that time.
11.30.2007 10:22am
BD (mail):
"And I would like to know what sort of decisions or results he is afraid will result absent this proposed amendment, and whether he thinks this amendment wold prevent such outcomes."

Randy, I don't know whether Prof. R. is concerned about outcomes at all. It's entirely possible that the invocation of foreign law is so infrequent and so incidental to the decisions where it has been used that banning the practice would not change the outcome of any future cases.

That said, the use of foreign law to help decide American cases is an insult to our status as a sovereign republic. The right of Americans to govern themselves is the whole idea behind the Declaration of Independence. Reliance on foreign law in interpreting our Constitution and statutes means that people in other countries are, to some degree, determining the laws under which Americans must live.

I recognize that the practice of certain justices' occasionally relying on foreign law is not tantamount to a wholesale rejection of our Constitutional system, as would be the case, for example, if the entire Supreme Court decreed the dissolution of Congress. But the fact that this practice constitutes merely a partial and arguably subtle erosion of sovereignty doesn't make it right.

My problem with the proposed amendment is that, while judges IMO should never invoke foreign law, I don't think the amendment route represents a practical strategy for stopping the practice. (It would be easier and better to deal with this issue through the appointment process.) Moreover, if it WERE practical to accomplish a change in the way justices decide cases through the amendment process, then I would rather focus on the broader issue of originalism-vs.-"living constitution" than simply the issue of foreign law.
11.30.2007 10:23am
Mark Field (mail):

Possibly those recognized as being inherent in English Common Law as it existed at that time.


The Supreme Court specifically held that the Constitution did not incorporate English common law. I'm blanking on the case now, but it was early (before 1810). This was a big dispute between the Jeffersonians and the Federalist party; the former opposed incorporation, the latter supported it.
11.30.2007 11:51am
Ben P (mail):
RE: Joe Jackson 11:57pm

Fine, let's change the hypothetical a bit.

I live in Arkansas. Arkansas has no written rule of evidence to exclude Liability Insurance as evidence of negligence. (federal rule 411)

Instead we have case law that does much the same thing on grounds of prejudice and probative value.

Ignoring the case law for the moment and imagining it's an issue of first impression suppose I were to stand up and argue

"Your honor, The evidence of insurance in this case should be excluded because it has little probative value and could be very prejudicial. The Case of X v Y supports this proposition because the court also has excluded evidence of subsequent repairs.

In addition, your honor, 47 other states and the federal government have adopted rules in various forms that prohibit introduction of evidence for this purpose"


In response to this argument the judge decides that "he'll follow the majority rule in the case because the prejudicial value of this is clearly outweighed by it's usefulness"



I admit there's a difference between states and other countries, but I see this argument as being little different from justice kennedy also accepting an "international consensus" as persuasive evidence in a particular situation.
11.30.2007 11:56am
Andrew x (mail):
I like this opinion:

Siegert v. Seneca Resources Corp., 28 S.W.3d 680, 684 (Tex. App. 2000).

It is a Texas case that compares an Alberta case to three U.S. cases that it cites for guidance to govern an area of the law where there is very little authority.
11.30.2007 1:35pm
Joe Jackson:
Okay Ben P, now let's make your hypothetical conform to the reality that Rosenkranz is talking about. I mentioned Roper before. Unlike your Arkansas example, the Supreme Court did have a written text to apply, namely, the Eighth Amendment. It also had more than 200 years of its own case law construing that text. This included a recent, completely unambiguous decision coming out the opposite way.

So, to present the same situation I am talking about, your hypothetical now looks like this:

1. You live in Arkansas. Arkansas has a written rule of evidence. You maintain that it is subject to differing interpretations, but the Arkansas Supreme Court has consistently, and recently, held that the rule allows liability insurance as evidence of negligence.

2. You stand up and argue, "Your honor, the evidence of insurance in this case should be excluded because it has little probative value and could be very prejudicial. The case of X v. Y supports this proposition because the court also has excluded evidence of subsequent repairs."

3. "In addition, your honor, 47 other states and the federal government have adopted rules in various forms that prohibit introduction of evidence for this purpose."

There is only one appropriate response. The judge says "I appreciate your zealousness in representing your client. However, the Arkansas Supreme Court has made it clear that whatever the rule may be in 47 other states, and whatever my personal feelings are about its use, the rule in this state allows liability insurance as evidence of negligence. The opinions of 47 other states do not outweigh my responsibility to apply the law as it is in Arkansas."
11.30.2007 2:58pm
bittern (mail):
Bellmore: Where the Constitution is vague, an accurate interpretational technique will report exactly that: That it's vague. Not produce some precise meaning suited, according to the tastes of the judge using it, for the moment.

Now, there's a plan!

As an eighth grader I volunteered to call the plays at first base. A throw came in about the same time as the runner. I shrugged my shoulders. I think it would be accurate to say I was fired.

Life experience, man! It's all about life experience!
11.30.2007 3:11pm
martinned (mail) (www):
L.S.,

@Joe Jackson: You do realise Roper was a SCOTUS ruling, and, last time I checked, the Supreme Court can overrule its previous decisions if it thinks that is what the law requires. In other words, the true Arkansas analogy lies somewhere inbetween yours and Ben P's.
11.30.2007 3:14pm
Russ (mail):
Dilan Esper,

Thank you so much for proving my point about lawyers. You have not let me down.
11.30.2007 3:33pm
Joe Jackson:
martinned,

Was the Eighth Amendment altered in some way between the Court's ruling in Stanford and its ruling in Roper? Was the Constitution amended between the Court's rulings in Bowers and Lawrence? Of course not. What basis is there, then, for the Supreme Court to overrule itself? Why would intervening decisions of foreign courts, or the actions of foreign legislatures, have any effect on the meaning of the U.S. Constitution?

"Can" the Court overrule itself? Yes. Should it? Not very often. (And let's not kid ourselves. I bet you love stare decisis when we are talking about cases you agree with.) Should it do so on the basis of sources that have nothing to do with the meaning of the provisions they are construing? No.
11.30.2007 4:10pm
Randy R. (mail):
BD: "It's entirely possible that the invocation of foreign law is so infrequent and so incidental to the decisions where it has been used that banning the practice would not change the outcome of any future cases. "

If so, than amending the constitution is a drastic measure. It's like using a bulldozer to kill an ant.

"That said, the use of foreign law to help decide American cases is an insult to our status as a sovereign republic."

How so? And what is the practical effect, if any? If Britain has a definition of cruel and unusual punishment, why couldn't we at least look at it? How would that be an insult? I would applaud such a thing, as Britain is considered a civilized country with a great deal more history than we have, so their experience in such matters may be helpful. Conversely, what is considered cruel and unusual in Idi Amin's Uganda would be helpful as well, as that would be a presumably barbaric administration, and if they approve of it, then we might do well to avoid such a practice.

I asked this before, but what specific decisions is this guy so upset about? Or anyone? The only I know of that relied up foriegn law was the one about executing minors or the mentally handicapped. Some right wingers were upset that the Supreme Court looked to other countries and found that none of our allies execute those people.
11.30.2007 4:52pm
Randy R. (mail):
Joe jackson: "Was the Constitution amended between the Court's rulings in Bowers and Lawrence? Of course not."

You should also mention the rulings of Plessy v. Feruguson and the Court's reversal in Brown v. Board of Education. Also, the one from the 1930s that reserved it's stance on substantive due rights (I forget those right now). Also, don't forget Dred Scott!

But actually, out of the thousands of court cases SCOTUS has issued, their reversals have been quite rare, and most of THEM have been based on evolving standards of human life and liberty, as in giving more of it.
11.30.2007 4:57pm
martinned (mail) (www):
L.S.,

@Joe Jackson: Personally, I think a number of terms in the constitution were meant to be judged against the changing standards of the day, "cruel and unusual" being one of them. So in that sense, yes, the 8th amendment has changed since 1790, even though its words have stayed the same. And again, what we're talking about is persuasive power, not foreign rulings being in some way controlling.

(Being from a civil law country, myself, where legal rulings are much shorter and more illegible than in the common law, I've never seen any civil law court cite a foreign authority, unless the European Court of Human Rights or the European Court of Justice count as foreign.)

I do agree with you, though, that the Court overruling itself should very much be the exception, not the rule.
11.30.2007 5:00pm
Joe Jackson:
martinned, I agree. I do think that "cruel and unusual" is meant to be judged against the changing standards of the day. Punishments that were not "unusual" in 1790 could certainly be unusual today, and in my view the text requires that you shift the analysis accordingly. In the case of Roper, however, we are not talking about 1790. We are talking about 1989, with no significant shift in the states' laws since that time. We are talking about the Court ignoring its own recent, clear-cut precedent based in part on flimsy notions about the supposed "opinion of the world community." That is neither good jurisprudence nor good reasoning.

Randy R., way to go. You sure showed me. Too bad you attacked a straw man instead of responding to what I actually said. I did not say the Court should never reverse itself, I said it should not do so "very often." Moreover, the context was pretty clear. When the Supreme Court overturns itself, it should do so because there is a compelling argument that its prior interpretation of the Constitution was wrong. It should not do so based on the Justices' belief that voters in France or England or Thailand would disapprove of its first decision as a matter of policy. If Bowers was wrongly decided, it was wrongly decided because the Court incorrectly interpreted the relevant Constitutional provisions. It was not (and could not be) wrongly decided merely because foreign nations decriminalized identical conduct.
11.30.2007 6:24pm
martinned (mail) (www):
L.S.,

@Joe Jackson: I think I agree with you that what's relevant for judging what is cruel and/or unusual is the standards pertaining in the United States at the moment, although states' laws are only part of that story. (If all that mattered was the standards as the are reflected by statutes enacted, the clause wouldn't provide much protection.)

Still, that only covers one of the reasons why one would want to cite foreign case law. It should certainly be permissible to cite an out of jurisdiction precedent because its argument makes sense. That is what persuasive power is all about. For example, ignoring the extensive US case law on the issue, one could consider in which cases the state has a compelling interest in limiting free speach by looking at the kinds of compelling interests that other (civilised) states have recognised. Trying to stop the courts from looking at problems in this way would likely be ineffective, and in any event ill-advised.
11.30.2007 8:34pm
Randy R. (mail):
BD: " If Bowers was wrongly decided, it was wrongly decided because the Court incorrectly interpreted the relevant Constitutional provisions. It was not (and could not be) wrongly decided merely because foreign nations decriminalized identical conduct."

I didn't mean to set up a straw man, but actually to support your contention that reversals are actually pretty rare.

however, since you raise the issue of a straw man, I will happily point out that in Lawrence v. Texas, SCOTUS did not *rely* upon foreign conduct or law to reach the conclusion that they needed to reverse Bowers. There is plenty in US jurisprudence for them to find a reason to overturn precedent.

But so far, no one has pointed out a *need* for this proposed constitutional amendment, other than make vague charges that on the rare occasion SCOTUS has relied upon foreign law, something really, really terrible occured. But they never define what that 'terrible' is, or why it's so bad.
12.1.2007 12:04am
Dan Simon (mail) (www):
"the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states."

To paraphrase Stalin, How many votes on the Supreme Court does the Constitution have?
12.1.2007 1:22am
tvk:
Joe Jackson, your position appears to be what I'll call "hard" originalism. That is, whether a particular rule has good policy effects is irrelevant, except to the extent that we believe the original legislators intended those good effects. So if the rule of evidence on whether liability insurance is admissible to prove guilt is ambiguous, the fact that it leads to all sorts of prejudicial effects should be, in this world, completely irrelevant unless the original legislators had this policy in mind. It follows in this world that the fact that foreign nations have something useful to say about whether a particular rule makes policy sense is likewise irrelevant.

Hard originalism has one appealing aspect to it--it provides a normative definition of the judicial role and fits within the basic notions of democratic theory. The judiciary is not "making" any law; it is just enforcing the democratic will no matter how long ago expressed.

But here are the problems you'll face:

1. Laws become obsolete more quickly than they can be changed through legislation. Suppose, for example, that the original history of the 14th amendment was absolutely clear that segregation was not intended to be prohibited. Does this mean Brown was wrongly decided? Let us be honest: Brown is a widely acclaimed decision because it comports with modern policy values--whether it comports with the historical intent is basically irrelevant. If it does, that's icing. If it doesn't, that won't change a thing.

2. You require a judiciary that is more akin to an army of zombie computers than real human beings. Hard originalism would require judges to faithfully enforce the Fugitive Slave Act, for example, no matter how immoral they thought it to be. The ideal judge in this world has no policy views and no moral scruples. But intelligent people who society would otherwise like to be judges (and who might otherwise like to be judges) tend to be politically engaged and have policy views. Judges today walk balance their own policy preferences with other considerations, including the normative appeal of the legitimacy that hard origialism provides; your approach would require them to abandon personal policy preferences always and without question. The personal "cost" and toll of being a judge will increase significantly.

3. You assume an absolute advantage of legislatures over courts in setting policy in every situation, when this is unlikely to be the case.

The originalism versus pragmatism debate has been raging for decades and will continue for many more. But it seems to me that many of the comments are talking past each other because the underlying assumptions are not being addressed.
12.1.2007 4:43am
GaryinSilverSpring (mail):
Why not have Federal Rules of Constitutional Interpretation instead of an amendment? Cf. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085 (2002)
12.1.2007 7:57am
martinned (mail) (www):
L.S.,

@GaryinSilverSpring: Because that would exceed Congress' power under the constitution. Since they make statutes (or at least determine the wording of them), they can dictate how they are meant to be interpreted. Interpreting the constitution, though, is ultimately up to the Court.
12.1.2007 9:24am
BD (mail):
Randy: By "insult" to our national sovereignty I am referring to the fact that the use of foreign law empowers foreign institutions to dictate the American law. It confounds the whole idea behind the Declaration of Independence to have American law determined by non-citizens. Even if this is something you'd like to see, it is not what anyone signed up for in ratifying the Constitution.

Moreover, it doesn't matter that the foreign law might happen to reflect policy choices that Americans could have made for themselves through our own republican system. If you and I go out to eat, it is understood we each get to choose our own meal. If I come back from the restroom to find that you have already ordered for me (or better yet, you have allowed someone else at the restaurant to order for me), I will be justifiable upset. Even if you happened to order something I like, or might have ordered for myself, I won't enjoy it, and I'll still be upset. It is specifically a problem of your depriving me of my right to order for myself.
12.1.2007 11:25am
martinned (mail) (www):
L.S.,

@BD: Again with the "dictate" and "determined". No one would ever claim that foreign law should ever be controlling. Say it with me: "Persuasive only."
12.1.2007 11:29am
BD (mail):
TVK: If I may interject, I would fully support the view that judges, federal judges especially, shouldn't be in the business of making policy. Please note that federal judges aren't accountable to the voters in any way. The Supreme Court was never intended to function as a super-legislature. Moreover, there is no reason to assume that judges are better equipped, morally or intellectually, to direct policy than elected officials.

You seem disturbed by the idea that judges shouldn't have ultimate authority to impose their moral views over those of the people as expressed by their elected representatives. But the proper role of the federal judiciary is limited to interpreting the Constitution and statutes, not weighing them against alternative policy choices the judges would like to see imposed.
12.1.2007 11:43am
tvk:
BD, my views in this area are actually rather agnostic. I understand the appeal of originalism. But although individual federal judges are not accountable for their mistakes, the federal judiciary is over the long haul. The Supreme Court has real power to do anything only because people are willing to follow its decisions. And the way to get that moral authority is to be on the right side of a social issue in 50 years more than slavish adherence to originalism. If the Supreme Court's entire history of decisions has been decisions like Dred Scott and Plessy (assume for a second that those were correct under originalism), it would not have the same reverance and power that it does today.

To be sure, if the Supreme Court's entire history has been decisions like Lochner (decidedly non-originalist), it wouldn't be particularly revered or powerful today either. So originalism and democratic will has something to do with it; and I wouldn't say that being right is the only thing that counts, either. But to say that making decisions that are good policy is irrelevant poses a problem, it seems to me.
12.1.2007 5:27pm
GaryinSilverSpring (mail):
Martinned: Then how about a Restatement of Constitutional Interpretation? Cf. Gary E. O'Connor, Restatement (First) of Statutory Interpretation, 7 N.Y.U. J. Legis. &Pub. Pol'y 333 (2004).
12.1.2007 6:38pm
martinned (mail) (www):
L.S.,

@GaryinSilverSpring: I'm not sure if that would work the same way for the Constitution. The problem with the constitution is that the actual written text is a) fixed (ignoring the possibility of amendment) and b) short.

Judging from the abstract, the kind of restatement O'Connor is talking about works by creating a common understanding between the users of legislation and its drafters about how any number of interpretation issues are going to be handled. It doesn't really work in the same way with statutes that predate the restatement.

Also, constitutional interpretation is only in some sense really interpretation of the constitution. The actual written text is only the tip of the iceberg. The doctrines that have been developed over the last 200 years by the Supreme Court are based on interpretation of the text of the constitution, and on interpretation of other doctrines. Ultimately, what we have today is like a tree, where some branches are pretty far removed from the stem of the tree. (Deciphering the metaphor: we have doctrines whose rationale is based on other doctrines whose rationale is based on, etc.) What it is is a very "common law" field of law, not that different from the UK. What is being interpreted isn't so much the constitution itself, but more the key dicta from the past. So unless the US want to abandon this system and write a totally new constitution like the ones written in the last 100-odd years, I don't think an interpretation guideline of any kind is the answer.

(Just to illustrate the difference: modern constitutions tend to be much more explicit about the kinds of exceptions that are possible to the civil rights that are listed. Instead of saying "congress shall make no law abridging the freedom of speech", they will say something like "the freedom of speech is protected, subject to power of Congress to make laws for the benefit of public order or public safety, provided such laws are not content-based". That still leaves the courts with some interpretation to do, but much more of the basics are already covered by the written text.)
12.1.2007 7:14pm
BD (mail):
LS: "Again with the "dictate" and "determined". No one would ever claim that foreign law should ever be controlling. Say it with me: "Persuasive only.""

I think you're conflating terms here. If I recall correctly, authority is "controlling" if the court is obligated to follow it, as is the case where a higher court covering the same jurisdiction has already decided the issue. Otherwise, it's persuasive. However, if the authority is persuasive, it can absolutely be outcome-determinative. For example, let's say a Kentucky court is deciding a case of first impression in that commonwealth, and looks to a similar case from Ohio. If the Kentucky court chooses to follow the Ohio court, then it's fair to say the Ohio case made the difference in determining the outcome of the case.

In the case of a federal court basing a decision a foreign law, of course the foreign authority is never going to be controlling. But that doesn't mean the federal court's reliance on the foreign law can never be the deciding factor in the outcome of the case.
12.1.2007 9:37pm
BD (mail):
TVK: If I understand the point you're making, you're arguing that the judiciary's legitimacy over the long haul REQUIRES it to make social policy because playing a more constrained role will place the courts in the position of having to perpetuate social injustices the public will eventually deem deplorable.

I have a number of problems with this argument. First, it doesn't address the issue I raised earlier, that is, even if ceding such additional powers to the judiciary seems like a good idea, it is NOT the role assigned to the judiciary at the time the Constitution was ratified. I don't see how the judiciary's unfounded assertion of the right to make social policy, however well-intended, can serve to enhance the judiciary's legitimacy. I would think it would have the opposite effect.

Second, I don't think it's at all clear that the application of an originalist judicial philosophy will, over time, tend to produce more social outcomes that the public will come to deplore. Perhaps it would, but you would have to put in a lot more work to make that case.

Third, I think you are probably overestimating the esteem in which the judiciary is held now. There are a great many people in this country, perhaps a majority, who hold the courts in low esteem because of a seeming lack of accountability on the part of judges and/or a politicization of the judicial process. I would argue that the judicary is suffering an erosion of its legitimacy precisely BECAUSE of things like the Supreme Court's reliance on foreign law to decide cases. From the perspective of institutional legitimacy, courts would be much better served by adopting a more restrained judicial philosophy and leaving the social engineering to the other branches of government.
12.1.2007 10:42pm
tvk:
BD, like I said before, I am rather agnostic on what the proper balance is. I am inclined to agree that, all else being equal, the originalist position is good because it comports with democratic theory and legitimacy. You may be quite right that, a majority of the time, originalism leads to the proper social outcome, too.

But everything is not equal in each and every case. The hard originalism you appear to subscribe to would demand that the courts ignore the injustice and immorality of the Fugitive Slave Act, segregation, etc. etc. It permits no exceptions even for the most glaring injustices. Whatever its originalism merits, Dred Scott and Plessy did the courts' legitimacy and respect no favors. Whatever its lack of originalism merits, Brown did the courts' legitimacy and respect tremendous good.
12.1.2007 11:03pm
martinned (mail) (www):
L.S.,

@BD: I think the difference between controlling and persuasive is a big one, for present purposes. The question is where the rule gets its legitimacy. If a court follows the reasoning of an out-of-jurisdiction precedent, this precedent is certainly "outcome-determinative". However, the new ruling following the old one derives its legitimacy not from the old ruling itself, or the authority/respectability of the court that handed it down, but simply from the new court's power under the law. As pointed out in the past, it would be no different if the new court simply made up a whole new rule without any precedent.

Schematically, since I'm not confident that I explained this right:

If a ruling from court X forces court Y to rule in case Z a certain way, the legimitacy of the ruling in case Z depends on whether it is legitimate that court X should have power over jurisdiction Y and/or the parties in case Z.

If a ruling from court X suggests an argument that court Y uses to rule in case Z, it does so on its own authority, and imbues the ruling with the legitimacy that it, court Y, already has anyway.

Since, in the second case, court Y would have been free to ignore the ruling from X, the identity of X becomes much less important. It could just as easily be a law review article. It is not X exercising authority in any way over case Z or jurisdiction Y, but merely Y exercising authority over the parties at bar.
12.2.2007 6:04am
BD (mail):
TVK: You seem to be implying that bad cases like Dred Scott and Plessy are somehow the result of originalism. I believe these cases were just wrongly decided, especially Plessy since it authorized forced racial segregation even after the 14th Amendment expressly conferred equal protection.

I agree that an originalist approach prevents courts from intervening to correct perceived social injustices. But it also operates to prevent courts from CREATING social injustices, or other problems, by meddling in policy disputes in which they have no expertise or authority to act.
12.2.2007 4:03pm
Clayton E. Cramer (mail) (www):

Originalism is indeterminate. Legal historians keep saying this, but conservative lawyers don't want to listen.
Originalism is NOT indeterminate. There are certainly situations where it is difficult or even impossible to determine what the original meaning was, and there are serious and thoughtful questions about whose statements and ideas should be considered dispositive. But there are Constitutional issues where figuring out original intent is very, very easy.

Did the Framers intend the establishment clause to prohibit the federal government from expressing support for religion, as long as no particular denomination received funding? Congress went ahead and passed statutes providing for one section of each township in what became Ohio to be devoted to funding whatever church a majority of the township selected.

Did the Framers intend the freedom of the press clause to prohibit criminal libel or obscenity prosecutions? No, because such remained common throughout this period.

Did the Framers intend the "cruel and unusual punishments" clause to prohibit capital punishment? There's a quite adequate body of evidence that the Framers generally misunderstood that clause in the English Bill of Rights to prohibit drawing and quartering--but they certainly had no intention of prohibiting capital punishment. The Constitution provides for it, and since the First Congress had no problem passing statutes providing for capital punishment, this pretty clearly answers the question.

The "originalism is indeterminate" claim is certainly true for some situations where either the questions didn't come up in that period, or where technology has completely changed the situation (for example, modern telecommunications). But a lot of what drives this claim is that the left doesn't like our Constitution. They want a different one--one that changes as they feel like it.
12.2.2007 10:52pm
Clayton E. Cramer (mail) (www):

If Bowers was wrongly decided, it was wrongly decided because the Court incorrectly interpreted the relevant Constitutional provisions.

Except Bowers wasn't wrongly decided. Lawrence was wrongly decided based on, among other things, false statements about the history of sodomy laws in the United States. Just because a law is stupid, doesn't make it unconstitutional. And while I am bothered by the "atom bomb to deal with ants" nature of the proposed amendment, it is very clear that cases like Lawrence, and the McCain-Feingold law, and the death penalty application to minors case more recently, show that the Supreme Court can't be trusted to do their job--which is interpreting the U.S. Constitution, not playing superlegislature.
12.2.2007 10:56pm
Clayton E. Cramer (mail) (www):

The hard originalism you appear to subscribe to would demand that the courts ignore the injustice and immorality of the Fugitive Slave Act, segregation, etc. etc.
You are certainly correct about the Fugitive Slave Act. This was clearly Constitutional, and unjust. But guess what? The Court's job isn't playing superlegislature--especially since they aren't even appointed.

I would argue your claim about segregation. I've read a variety of arguments about this, and it is very clear that the Court from the Slaughter-House Cases, and U.S. v. Cruikshank onward, ignored original intent of the 14th Amendment to maintain a system that protected the Klan. And that was judicial activism.

It permits no exceptions even for the most glaring injustices. Whatever its originalism merits, Dred Scott and Plessy did the courts' legitimacy and respect no favors. Whatever its lack of originalism merits, Brown did the courts' legitimacy and respect tremendous good.
Please explain these claims:

1. Dred Scott is one of those cases where it is not at all clear that the Court took an originalist perspective. Remember that the legal and social status of blacks in 1789 was actually somewhat higher than in 1857.

2. I am not entirely sure that I agree with you about Plessy being decided on originalist grounds. Didn't Congress passed a Civil Rights Act during the same session as the 14th Amendment requiring public accommodations to be available without discrimination?

If Brown helped the Court's respect level, I have to ask, "with who?" It isn't like segregation of schools was something that a tiny minority imposed on a hapless majority. Segregation enjoyed enormous support in the South, and at least tolerance in the North. Maybe you mean that Brown increased respect for the Court among liberals. It is not at all clear that it increased respect among the unwashed masses that actually were voting.
12.2.2007 11:05pm
Clayton E. Cramer (mail) (www):

BD, like I said before, I am rather agnostic on what the proper balance is. I am inclined to agree that, all else being equal, the originalist position is good because it comports with democratic theory and legitimacy. You may be quite right that, a majority of the time, originalism leads to the proper social outcome, too.

But everything is not equal in each and every case.
So how do you decide in which cases it is okay for the Court to follow the Constitution and in which cases it is okay for them to drop the pretense of interpreting our Constitution? Once you open the door by saying, "Oh, this is a tragedy, we have to ignore the Constitution because the people of this country are too darn stupid to amend the Constitution in a way that will satisfy the wine and cheese party set?" where does it stop? At a certain point, we can just stop bothering with elections; the dictators in black robes get to make the decisions, overturning every democratic action on the grounds that "everything is not equal" in every case.
12.2.2007 11:08pm
Dilan Esper (mail) (www):
So how do you decide in which cases it is okay for the Court to follow the Constitution and in which cases it is okay for them to drop the pretense of interpreting our Constitution?

Hold on, Clayton. There are many other forms of interpretation other than originalism. There's just reading the text. There's looking at the context of the rest of the document. There's looking at post-enactment history and precedent and how previous courts and congresses have construed the provision. There's using contemporary definitions of the terminology.

This is the sort of thing the right wing throws around carelessly-- even if you believe in originalism, it doesn't mean that other people who use other methods aren't interpreting the document. They are interpreting it differently. But originalism isn't the only form of textual interpretation.
12.3.2007 6:25pm