Using “Foreign” Law in Constitutional Interpretation
posted by Gerard Magliocca
It is not breaking news to note that a significant debate is underway about whether foreign law should be used to read our Constitution. Separating this jurisprudential issue from the substantive controversies that often accompany the debate (on capital punishment, for example) is difficult and often breaks down into a liberal/conservative smackdown. So I’d like to suggest a possible line of neutral research. This might be a good student note topic.
Pick a pair of U.S. states (or multiple pairs) that differ widely in their politics. (Say Mississippi and Vermont, or Utah and Hawaii). Then look at each State Supreme Court’s cases interpreting its own Constitution. How often do those cases cite the “foreign law” from the ideologically opposed state?
This would be helpful information. Nobody would argue that it is inappropriate for a state court to cite another state court in a constitutional context because we are one nation. But it would be interesting to learn whether this practice is common. Critics of citing foreign law in the U.S. Supreme Court argue that the practice is wrong in part because our citizens did not consent to the processes that produce those decisions and often have different values from a country like France. The same argument, though, could be made if the Texas Supreme Court, for example, cites a decision from Maine. (Note that this study would work best in states where amending the constitution is relatively hard.) If states like Texas routinely cite states like Vermont in constitutional cases (not garden-variety common law cases), then the argument against doing so at the federal level would be undermined. And vice versa.
October 5, 2009 at 6:55 pm
Posted in: Jurisprudence
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Responses (16)
A.J. Sutter - October 5, 2009 at 7:55 pm
Even if US states cite each other, there is still the argument (available to those who categorically oppose foreign cites, which I do not) that values within America are more homogeneous than values across international borders.
It would also be interesting to note how often the controversy over foreign cites arises in the context of human rights, as distinguished from, say, commercial law or some other field. Are US courts more prone to be cosmopolitan about commercial practices and more exceptionalist about Americans as humans, or vice versa, or equally exceptionalist about both?
Another topic, though one that requires some foreign language skills, would be to see whether the reluctance is reciprocated in a particular country. E.g., the German Bundesverfassungsgericht (Constitutional Court) has cited US Supreme Court in freedom of religion cases, even though German and American religious cultures are very different. I doubt very much that the reverse has occurred. How often does a particular foreign legal system see relevant similarities with the US, where the US refuses to do the same? (Though I admit, it may be hard to identify most cases where US courts or Congress have declined to consider foreign law.)
Orin Kerr - October 5, 2009 at 8:49 pm
“If states like Texas routinely cite states like Vermont in constitutional cases (not garden-variety common law cases), then the argument against doing so at the federal level would be undermined. And vice versa.”
I’m not so sure why it would be undermined, as the use of foreign law is controversial when it is used to interpret language in the United States Constitution that doesn’t even exist in the other constitutions. In contrast, state citations to constitutional provisions in other state constitutions generally share the same history and/or language.
With that said, a few Westlaw queries suggests that such reliance is rare if not nonexistent. I went into the Texas case database on westlaw and ran these searches, with the following results:
vermont /2 constitution: 0 results
“vermont supreme court” & constitution: 9 results
Of those 9 results, there didn’t seem to be any real reliance on vermont case law, much less of vermont state constitutional caselaw.
Gerard Magliocca - October 6, 2009 at 4:28 am
Orin,
I agree with your “germaneness” point. Nonetheless, if you’re right that Texas does not cite Vermont, perhaps those similarities in language and history don’t count for much as an interpretive matter. (Maybe they do — I’m not an expert in state constitutional law.)
One flaw in my post is that a state could cite another as part of a survey (“20 States do this and 29 do that”). That could count according to what I said, but that wasn’t the kind of reference I was driving at.
Lori Ringhand - October 6, 2009 at 5:03 am
I disagree with Orin. I understand the strong claim against the use of foreign sources to be that such sources are simply irrelevant to constitutional interpretation because they tell us nothing about the original public understanding held by the actual ratifiers of our constitution. That reasoning holds even if “foreign” constitutions include similar language or reflect similar underlying values – people in Vermont could have a very different public understanding of a state constitutional term than do people in Texas, even if the constitutional texts are similar. I haven’t looked at these cases in a while, but one issue area in which this question might show up is state court interpretations of state constitutional provisions regarding the right to a public education.
A.J. Sutter - October 6, 2009 at 8:46 am
Lori, if that is the “strong” claim, what is/are the weak one(s)?
TJ - October 6, 2009 at 9:59 am
I think the disagreement between Orin and Lori reflects the fact that there are several arguments against using foreign decisions to interpret the U.S. constitution. The use of state constitutional decisions by other states undermines some, but not all, of them.
1. There is the argument that foreign law does not replicate the text of the U.S. constitution. This only works if you are a strong textualist. Moreover, although state constitutions often have similar text, they are not so frequently identical.
2. There is the argument that foreign law does not share our history and legal principles, as embodied by the U.S. constitution. Since state constitutions largely share the same history and legal principles, this argument is not affected. But foreign law sometimes does share our history and legal principles, if we are talking about common law descendants such as Canada, Australia, and the United Kingdom.
3. Finally, there is the argument that citing foreign law simply interferes with the sovereign rights of U.S. citizens. Again, this argument is challenged if we accept that Massachussetts courts can cite to Maine constitutional decisions, since that equally interferes with sovereignty.
In short, the analogy between, say, the U.S. and Australia as compared to Texas and Maine seems persuasive to me, at least initially. I would love to see some counter-arguments. But assuming the analogy sticks, you can equalize up or equalize down. That is, you can either say no citation to any \”foreign\” law including interstate law, or you can permit citation to a limited set of foreign law that somewhat shares (though of course incompletely shares, just as Texas and Maine incompletely share) U.S. history and legal culture.
Patrick S. O'Donnell - October 6, 2009 at 11:03 am
Here’s a recent paper that provides some interesting historical backdrop and perspective (courtesy of Dan Ernst at the Legal History Blog): “On an Equal Footing: Constitution-Making and the Law of Nations in the Early American Republic”—Available here: http://www.law.georgetown.edu/faculty/events/details.cfm?EventID=459
Tantallon - October 6, 2009 at 6:03 pm
To suggest that there’s some festering, evil, viscious contamination, pooling out there, collecting just under the surface of whatever paper or screen that foreign caselaw happens to be written on, that the American legal community will allow to burst out and infect the American legal system as soon as it makes port in some American courtroom is laughable.
America has some of the greatest legal scholars and judicial writers in the world. There’s a world of experience out there ripe for their picking, disection and where appropriate, application. It has the chance to consider in applying your own law, ideas raised, test driven, rejected, adopted and modified in other jurisdictions all over the world.
To suggest that the US legal community, or worse yet, American law itself, can’t handle it (and that the rest of the lawyers and academics in the country can’t handle it)is ludicrous.
Orin Kerr - October 6, 2009 at 7:44 pm
Lori,
Who makes the claim that foreign law is objectionable because it is irrelevant to original public meaning? Off the top of my head, I don’t recall coming across that specific argument. It seems like a very weak claim given that no one objects to citing modern precedents which are also not relevant to original public meaning; it also is a surprising claim given that most of the people who object to citing foreign law are not themselves originalists.
Tantallon,
I assume you also would have no problem with the U.S. Supreme Court discussing and taking tips from the King James Bible? Surely American law can handle that, too?
Orin Kerr - October 6, 2009 at 7:46 pm
I should add that in my view, the opposition to citing law is mostly opposition to the U.S. Supreme Court taking sides in the culture wars:
http://www.volokh.com/posts/1239637191.shtml
A.J. Sutter - October 7, 2009 at 5:54 am
Orin, your linked post says: “In those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars.”
Just wondering: do you consider the abolition of capital punishment of juveniles (see Roper v. Simmons (2005), in which Kennedy, J. cited law other countries’ law) to be “taking sides in the culture wars”? And have the views of “modern liberalism .. won out” in China, Pakistan, Yemen and Zimbabwe, all of which outlawed execution of juveniles before we did?
Lori Ringhand - October 7, 2009 at 6:51 am
Orin: Unless I’m missing something (which I may be; this is not a debate I follow closely) that seems to be what Justice Scalia says (see excerpt below from the Breyer/Scalia debate)
A.J.: I think the weak claim runs something like this: one can accept that changing social norms/needs are relevant to constitutional interpretation, but still reject that judges should look to foreign countries as sources of those norms/needs because our culture and legal system are sufficiently unique that such sources are simply not helpful, even within this broader interpretive search. (Breyer refers to this argument in the below link).
JUSTICE SCALIA: … You have to ask yourselves, why is it that foreign law would be relevant to what an American judge does when he interprets — interprets, not writes – [a constitution]. Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don’t think it changes since then. Now, obviously if you have that philosophy — which, by the way, used to be orthodoxy until about 60 years ago — every judge would tell you that’s what we do. If you have that philosophy, obviously foreign law is irrelevant with one exception: Old English law, because phrases like “due process,” the “right of confrontation” and things of that sort were all taken from English law.
http://www.freerepublic.com/focus/news/1352357/posts
Don Cruse - October 7, 2009 at 7:52 am
Three quick thoughts about this proposed study:
1. Texas’s Constitution is probably not the model you’re looking for. It is relatively easy to amend and tends to the detail of a statute. For example, just the section dealing with second liens on homes (Art. 16, sec. 50) is longer than the original U.S. Constitution.
2. There is a big difference between a state court citing a sister state for (a) a question of common law, which is usually subservient to state statutes and can be overruled without bothering with constitutional amendment; (b) a question of statutory law — such as one of the many “uniform laws” out there — the local version of which the state legislature can also easily amend; and (c) a pure question of state constitutional law that would require the people to ratify any overruling.* The only thing of remote interest to you should be (c).
3. And with regard to category (c) — pure questions of state constitutional law — your study may still include too much noise. That’s because some states (including Texas) treat the big rights-granting provisions (free speech, due process) as being essentially coterminous with the federal version. Within that framework, a state court’s citation to federal or sister-state authority might just be noise. You’d have to carefully clean those out of your data.
(* With regard to (2)(a) and (2)(b), the Legislature’s power to make their amendments retroactive might be limited by some other principle of law, but… that isn’t really what your study is about.)
Don Cruse - October 7, 2009 at 8:08 am
On rereading your post, I see that you already anticipated my second point. Sorry about that.
The point remains that the truly useful dataset is likely to be small. You’d need to focus on rights-creating provisions, not on the sort of internal structural questions that are truly the bread and butter of state constitutional law.
One way is to pick a single “right” and study just that. An interesting example might be takings law. With the narrower scope of federal protection, you might find more state courts recognizing broader rights and looking to sister states for persuasive support.
What that tells you about the international example is probably “not much.” But it would be an interesting subject of study in its own right.
Orin Kerr - October 7, 2009 at 11:48 am
AJ Sutter asks:
I think most aspects of the death penalty debate are steeped in the culture wars, this particular case included.
A.J. Sutter - October 7, 2009 at 4:57 pm
Thanks, Orin, that at least allows me to calibrate where your comments are coming from. See also my initial comment to this post. If your views reflect the current prevailing mood among the US legal community and judiciary, these look like good times to be an expat.
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