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The Use of Foreign Law in American Constitutional Interpretation:
A Revealing Colloquy Between Justices Scalia and Breyer


Wednesday, Jan. 19, 2005

What bearing, if any, does foreign law have on the proper interpretation of the American Constitution? Speaking last week at the American University Washington College of Law, Justice Antonin Scalia gave a blunt answer: none. Writers of a new constitution would be wise to pay attention to the experience of other nations, Scalia readily acknowledged, but judges interpreting our existing Constitution should pay no heed to how other countries interpret their own constitutions.

Justice Stephen Breyer disagreed. Breyer conceded, of course, that the decisions of foreign courts are not binding on American courts in the way that precedents of the U.S. Supreme Court are. Yet he nevertheless insisted that foreign judges frequently face legal problems quite similar to those that confront courts in the United States, and that the solutions the former have fashioned may be informative for American judges who are uncertain about how to resolve difficult issues.

Those contrasting positions might appear neatly to track the political affiliations of the Justices: Scalia, the conservative appointee of a Republican President, favors U.S. unilateralism, while Breyer, the centrist-to-liberal appointee of a Democratic President, favors a more global approach.

Yet the Scalia-Breyer colloquy revealed that such an ideological mapping is too neat. The real differences between Scalia and Breyer have more to do with their general views about jurisprudence: Scalia rooted his opposition to foreign law in his belief that the Constitution should be construed in accordance with the original understanding of those who framed and ratified it. In contrast, Breyer took a more pragmatic, forward-looking approach.

Perhaps most intriguing, however, was the question left unanswered by the two Justices. Both acknowledged that in an era of globalization, foreign law is increasingly relevant to numerous disputes involving the interpretation of treaties, statutes, and other sub-constitutional law.

The unanswered question is how that phenomenon will ultimately affect American constitutional interpretation.

Use of Foreign Law in Recent Supreme Court Cases

What prompted the Scalia-Breyer colloquy on foreign law? In the last several years, two controversial Supreme Court decisions involving politically charged issues made use of foreign law.

In the 2002 case of Atkins v. Virginia, the Court ruled that the Eighth Amendment's prohibition of "cruel and unusual punishments" forbids the execution of mentally retarded individuals. Under the Court's precedents, the determination whether a punishment is cruel and unusual turns on its consistency with "the evolving standards of decency that mark the progress of a maturing society." In concluding that execution of the mentally retarded was out of bounds, the Court took account of practice in American states, but also invoked a brief filed by the European Union which catalogued the overwhelming repudiation of the practice by the rest of the world.

Then, in the 2003 case of Lawrence v. Texas, the Supreme Court invalidated a state law criminalizing "homosexual sodomy." As in the Atkins case, so too in Lawrence, the Court's opinion focused primarily on arguments rooted in U.S. sources. However, Justice Kennedy's majority opinion also cited a 1967 Act of the English Parliament and a 1981 ruling of the European Court of Human Rights invalidating criminal prohibitions on sodomy. These developments, Justice Kennedy said, showed that, contrary to claims of supporters of the Texas law, criminal prohibition of homosexual sodomy was not universally accepted within Western civilization.

The Conservative Backlash Against Foreign Law

The Court's liberal decisions in Atkins and Lawrence unsurprisingly drew criticism from conservative pundits and politicians. Interestingly, these conservatives were not content to express disagreement with the substantive results in the two cases. In addition, they attacked the use of foreign law.

Thus, last year, a bill called the "Constitution Restoration Act" was introduced in both houses of Congress. In the provision most relevant for our purposes, the bill would forbid federal courts from relying upon foreign law in interpreting the U.S. Constitution. (The bill also attempts to strip federal courts of the authority to hear challenges to government action that acknowledges "God as the sovereign source of law, liberty, or government.")

In directing federal courts how to interpret the Constitution, the proposed Constitution Restoration Act would almost certainly violate the constitutional principle of separation of powers; Congress can no more tell federal judges what sources they may properly consult to do their job, than can the courts tell Congress what witnesses to call when it holds hearings.

Accordingly, even in the unlikely event that Congress were to enact the Constitution Restoration Act, it would not be enforceable; the first court to review it would likely strike it down. Nevertheless, the mere fact that the bill was introduced illustrates the passions that the Justices' foreign law citations in Atkins and Lawrence have stirred.

The Limited Use of Foreign Law in American Constitutional Interpretation

In neither the Atkins case nor the Lawrence case did the Supreme Court suggest that decisions of foreign courts in any way controlled the outcome of American constitutional litigation. Nor did Justice Breyer indicate that he would simply defer to the views of foreign jurists.

Instead, in his discussion with Justice Scalia, Justice Breyer suggested that foreign opinions can be helpful in at least two ways. First, they can be the source of good ideas in much the same way that a well-crafted legal brief or scholarly article can be.

Second, the experience of a foreign nation can provide object lessons. Justice Breyer gave the example of the school vouchers question. In preparing to decide whether the First Amendment's Establishment Clause bars the use of state-funded vouchers at parochial schools, Justice Breyer said that he found it useful to study how European countries funded religious schools without sectarian strife resulting.

Given the limited and seemingly innocuous use of foreign law advocated by Justice Breyer and others, why do conservatives, including Justice Scalia, still find it objectionable?

Justice Scalia's Originalist Argument Against The Use of Foreign Law in Constitutional Interpretation

In last week's colloquy, Justice Scalia made clear that he is not categorically opposed to looking to foreign law. If he were interpreting a treaty with a foreign sovereign, for example, Justice Scalia said that he would find the meaning given to the treaty by other signatories to be highly relevant.

Yet the U.S. Constitution, Scalia said, is different. How so?

Justice Scalia offered a number of objections to the use of foreign law in interpreting the U.S. Constitution, but the core of his argument derived from his professed approach to constitutional interpretation, originalism--the idea that the meaning of the Constitution was fixed when it was adopted. (In a prior column, I have discussed some of the general difficulties with originalism as a theory of constitutional interpretation.)

It is easy to see why an originalist would eschew foreign law in interpreting the Constitution. Contemporary decisions by a European or other foreign court obviously have no bearing on what Americans thought the U.S. Constitution meant in 1789, when it was ratified. For Justice Scalia, the only foreign law relevant to that question is the pre-1789 law of England, because the framers of the American Constitution, as former English colonists, frequently used terms of art taken from the English law with which they were familiar.

Thus, for Justice Scalia, the main problem with citing modern foreign law to interpret the U.S. Constitution is not so much that the law is foreign, but that it is modern. He would (and does) object equally to citations of modern American legal trends to inform constitutional interpretation.

Justice Scalia's Modernist Argument Against Foreign Law in Constitutional Interpretation

Fair enough, but what if one is not an originalist? Although he did not admit it during his discussion with Justice Breyer, in many areas of constitutional interpretation, even Justice Scalia makes no effort to square his views with the original understanding.

For example, Justice Scalia has written important First Amendment opinions--such as the 1992 decision in R.A.V. v. City of St. Paul, which invalidated a hate-speech ordinance--that appear to expand free speech protection well beyond what the framers envisioned. (Perhaps an argument could be fashioned that James Madison and his contemporaries held the view reflected in R.A.V., but Justice Scalia's opinion in that case made no effort to present such an argument.)

If Justice Scalia himself is not consistently an originalist, might there be a role for foreign law in those cases in which he and other Justices employ a more modernist approach? In last week's discussion, Justice Scalia said no to this question too.

Even if a judge believes in a dynamic as opposed to a static Constitution, Justice Scalia said, the judge should still be wary of foreign law. For if the meaning of the Constitution evolves, the place to look for that evolution is in the values and opinions of the American people.

Looking to foreign law, Justice Scalia argued, is simply a mask for the judge's imposing his or her own values in those instances in which American public opinion is at odds with those values--as it is, Justice Scalia claimed, on issues like the death penalty and gay rights at issue in the Atkins and Lawrence cases.

Justice Scalia pointedly noted that liberal Justices do not typically cite foreign law when, as with abortion and the rights of criminal suspects, foreign practices are more conservative than U.S. constitutional law.

The Jurisprudential Disagreement Between Scalia and Breyer

Is that right? Is foreign law simply a way that judges disguise the imposition of their own values?

Justice Breyer thought not. To begin, he said that a responsible judge will cite foreign law whether it agrees or disagrees with his or her own position. More broadly, Breyer said, any interpretive method can be used dishonestly by a judge so inclined: Judges can be self-serving in the domestic authorities they cite--including their citations of the original understanding of the framers and ratifiers of the Constitution.

The Justices' attitudes towards the relevance of foreign law for constitutional interpretation are thus rooted in their respective jurisprudential philosophies. Professing originalism, Scalia wants to look at an old and narrow set of materials to discern the original meaning of the Constitution's text. Believing that the original understanding frequently cannot resolve modern, often unanticipated problems, Breyer wants as much help, and from as many sources, as he can find.

Can U.S. Constitutional Interpretation Resist Globalization?

Despite that important difference, Justice Breyer observed that in numerous cases involving issues other than constitutional interpretation, foreign law is directly relevant. Contracts between parties based in different countries frequently call for the application of foreign law; treaties govern interactions between sovereigns and their citizens; and the efforts of many countries to regulate cross-border transactions of multinational corporations frequently require national courts to harmonize different laws.

Justice Scalia heartily agreed that foreign law is relevant, indeed indispensable, to resolving questions arising out of such circumstances. Accordingly, whatever the motives of those in Congress who object to Supreme Court invocations of foreign law in constitutional interpretation, it is clear that Justice Scalia, for his part, is not motivated by xenophobia or resistance to globalization.

Yet, given globalization, foreign law would appear destined to influence U.S. constitutional law. After all, throughout human history, commercial and other contact with foreign peoples has invariably led to intellectual change.

Alexander the Great's expedition to India put Greek philosophers in touch with the ascetic traditions of the sub-continent; the Crusades led Christian Europeans to re-encounter the lost Greek tradition, which had been preserved in the Arab world; European conquest of the New World exposed the settlers to the constitutional arrangements of the Iroquois Confederacy. In each such encounter, new patterns of thinking emerged from the cross-fertilization of cultures and ideas.

There is no reason to think that ideas about how to interpret the U.S. Constitution are immune to such forces. Concepts developed in one area of law--such as statutory interpretation or contract interpretation--frequently and logically migrate to other areas of law--such as constitutional interpretation. Thus, as foreign law plays an increasingly important role in matters outside constitutional interpretation, its substantial influence will inevitably be felt within constitutional interpretation.

Against this backdrop, it hardly seems to matter whether a Supreme Court opinion occasionally cites foreign law as non-binding authority. The real action is elsewhere. Given Justice Scalia's openness to the globalization of American law outside the context of constitutional interpretation, his resistance to the citation of foreign law in constitutional cases is ultimately likely to prove futile.

Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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