Foreign Law: Coming Soon to a Supreme Court Near You (Elena Kagan vs. the Founders)

[NotreDame]

This should be the ultimate standard. Does a law serve these ends?

"to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."

Why not examine the laws of other countries to see if they achieve these results? And if a law does, what does it matter where it came from? If not, then we know what won't work for us. What's the problem?

Because our constitution was not established upon those legal systems, not in the past, and not today. It does not make any sense to consult Zimbabwe's legal code today to interpret a legal document whose origins are in 18th century English common and statutory law.

Our U.S. Constitution is unique. Our U.S. Constitution is a unique law, made for a unique people and nation. Our U.S. Constitution was created with certain values, principles, ideas, ideals, and beliefs in mind, and the U.S. Constitution is the ultimate embodiment of each. Those values, principles, ideas, ideals, and beliefs were shaped by our unique experience, a unique experence shaped by our response to problems, dilemmas, debates, disagreements, situations, war, civil unrest, and our relationship to the British government, English common and statutory law. From all of this our U.S. Constitution owes it existence, including the Bill of Rights. Hence, when interpreting and understanding "our" law and what it says, it does not make much sense to consult the legal code of Togo.

However, I think this is an absolutely fantastic proposition. When interpreting the Establishment Clause of the 1st Amendment, perhaps the legal code of Iran should be consulted? Or when interpreting the free speech clause of the 1st Amendment, maybe China should be our example to follow? When it comes to 4th Amendment protection from unreasonable search and seizure, maybe China, Iran, N. Korea, and Yemen should be what we aspire to achieve legally?

 

[Marek]

It makes absolute zero sense to consult contemporary foreign law when interpreting the U.S. Constitution. Zero.

I think you're wrong about this, at least regarding the 8th Amendment. In Trop v. Dulles the Supreme Court makes, in my opinion, a strong argument:

The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society . . . .The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. . . . The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion. In this country the Eighth Amendment forbids this to be done.

Is it not unreasonable to assume that the framers left the amendment particularly vague, such that it could evolve with contemporary standards? If we were stuck with 18th century notions of "cruel and unusual punishments" the 8th amendment would essentially be rendered meaningless.

I see no reason to limit the courts' ability to draw from a number of sources. In cases interpreting the constitution, it seems justices have always been careful to point out that foreign law is not in anyway binding, but is useful to gain better insight and understanding into the questions they are trying to answer.

 

[mpok1519]

We form our policies by examining other policies.

 

[BotanicalBob]

I see no reason to limit the courts' ability to draw from a number of sources. In cases interpreting the constitution, it seems justices have always been careful to point out that foreign law is not in anyway binding, but is useful to gain better insight and understanding into the questions they are trying to answer.

I'm more worried about them using foreign law to reason away further erosion of our Constitutional rights and civil liberties because it's the "popular" thing to do.

 

[NotreDame]

I think you're wrong about this, at least regarding the 8th Amendment. In Trop v. Dulles the Supreme Court makes, in my opinion, a strong argument:

The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society . . . .The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. . . . The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion. In this country the Eighth Amendment forbids this to be done.

Is it not unreasonable to assume that the framers left the amendment particularly vague, such that it could evolve with contemporary standards? If we were stuck with 18th century notions of "cruel and unusual punishments" the 8th amendment would essentially be rendered meaningless.

I see no reason to limit the courts' ability to draw from a number of sources. In cases interpreting the constitution, it seems justices have always been careful to point out that foreign law is not in anyway binding, but is useful to gain better insight and understanding into the questions they are trying to answer.

First of all, I disagree with Trop's reasoning but this is besides the point. However, the 8th Amendment has as its origins in English common law and statutory law. It does not make any sense to consult some other legal source to understand the 8th Amendment, much less contemporary foreign law. In other words, the fact the Court alluded to it in this decision does not make it right and neither does it make sense.

In cases interpreting the constitution, it seems justices have always been careful to point out that foreign law is not in anyway binding, but is useful to gain better insight and understanding into the questions they are trying to answer.

Not when it comes to interpreting our U.S. Constitution.

 

[Marek]

I'm more worried about them using foreign law to reason away further erosion of our Constitutional rights and civil liberties because it's the "popular" thing to do.

Yet there is no evidence that it will be used this way. For the 200+ years that foreign law has been cited in court opinions, how often has it been used to "erode our rights and liberties"?

I can think of a number of times it's been cited to expand our constitutional rights and civil liberties though...

 

[BotanicalBob]

Yet there is no evidence that it will be used this way. For the 200+ years that foreign law has been cited in court opinions, how often has it been used to "erode our rights and liberties"?

I can think of a number of times it's been cited to expand our constitutional rights and civil liberties though...

Such as?

 

[Marek]

First of all, I disagree with Trop's reasoning but this is besides the point. However, the 8th Amendment has as its origins in English common law and statutory law. It does not make any sense to consult some other legal source to understand the 8th Amendment, much less contemporary foreign law. In other words, the fact the Court alluded to it in this decision does not make it right and neither does it make sense.

Fine, but what if interpretation of the 8th amendment leads the court to the conclusion that the framers intended the meaning of "cruel and unusual punishment" to evolve with the "standards of decency that mark the progress of a maturing society"? Would it then not be reasonable to consider contemporary foreign law?

Not when it comes to interpreting our U.S. Constitution.

Wrong. One way it's useful is for empirical evidence of various policies. When courts are considering one policy over another, or the effects of one decision versus another, how is it not useful to look to nations that have made these decisions already?

 

[manchambo]

The answer to this question is rather simple and easy. The Framers of the U.S. Constitution, along with those who helped establish our judicial system in the U.S., did not begin with a blank slate. The 13 colonies were English colonies and primarily populated with people who had left England. They left England and brought with them English customs, mores, and English legal ideas, English law, and the English common law.

English common law is, for the most part, judge made law. It is law in which the decision of judges becomes controlling and future judges adhere to the ruling of previous judges, what we call "stare decisis." The practice of judges making a rule, and this ruling being binding on society and future judges, was well established by the time the U.S. Constitution was drafted and ratified, including Article III of the U.S. Constitution. When discussing the "judicial power" of Article III of the U.S. Constitution, undoubtedly the Framers of the U.S. Constitution understood this "judicial power" to include the practice of precedent, of evaluating previous decisions and adhering to them. This is a judicial power the judiciary possessed and exercised before the U.S. Constitution and it is a power they retained after its ratification.

You know a good way to tell when someone is about to tap dance? When they preface their response by saying that it is "simple and easy."

The ignorance to which my post responded was a post suggesting that consulting foreign law is wrong because judges only should consult sources that are authorized in the constitution. As your post (at least tacitly) concedes, the constitution authorizes precisely zero sources that judges are permitted to consult.

Having acknowledged that, you then proceed to silently and selectively step away from strict construction by positing a number of facts that the framers "must have" understood, but did not actually write in the constitution.

Interestingly, you then suggest that the fact that the framers must have had in mind the law and judicial policies of a foreign country (England) is proof that they would have disapproved consideration of foreign laws. There's more than a little inconsistency here, no?

And I don't know (and I doubt that anyone else really knows) whether or to what extent those old English judges considered foreign laws. To the extent they didn't, it is likely explained by the fact that they didn't have Westlaw, or even Lexis, and therefore didn't have particularly ready access to foreign decisions. There is no obvious premise of common law that precludes consideration of pertinent foreign decisions and laws. Rather, the whole point of judge-made decisions is that the judges rely on, analyze, and cite, such sources of information that the judges find persuasive.

One thing I know the judges didn't rely on back then is law review articles. I know that because I'm fairly certain law review articles didn't exist. I also very highly doubt that judges at English common law relied to any extent on legislative histories. I don't believe that those existed, at least to the degree they do now. But I've never heard a judge criticized for relying on law review articles. I have heard them criticized for relying on legislative history (and rightly so, to my thinking), but not for the misguided reasons at play here.

 

[manchambo]

First of all, I disagree with Trop's reasoning but this is besides the point. However, the 8th Amendment has as its origins in English common law and statutory law. It does not make any sense to consult some other legal source to understand the 8th Amendment, much less contemporary foreign law. In other words, the fact the Court alluded to it in this decision does not make it right and neither does it make sense.



It's well known that at least some of the framers didn't believe things like flogging or nostril slitting were "cruel and unusual." Is your view that the 8th Amendment must be read not to preclude those practices?

 

[BotanicalBob]

It's well known that at least some of the framers didn't believe things like flogging or nostril slitting were "cruel and unusual." Is your view that the 8th Amendment must be read not to preclude those practices?

My girlfriend gave me lip one time, I split that nostril right up to her eyes.

She winces everytime I cut my meat at dinner, but that dinner is good and hot, just like it should be.

 

[NotreDame]

One thing I know the judges didn't rely on back then is law review articles. I know that because I'm fairly certain law review articles didn't exist. I also very highly doubt that judges at English common law relied to any extent on legislative histories. I don't believe that those existed, at least to the degree they do now. But I've never heard a judge criticized for relying on law review articles. I have heard them criticized for relying on legislative history (and rightly so, to my thinking), but not for the misguided reasons at play here.

You know a good way to tell when someone is about to tap dance? When they preface their response by saying that it is "simple and easy."

It is simple and easy, as I am about to demonstrate.

As your post (at least tacitly) concedes, the constitution authorizes precisely zero sources that judges are permitted to consult.

No, in fact my post says the exact opposite. Are you sure you read my post or someone else's?

Having acknowledged that, you then proceed to silently and selectively step away from strict construction by positing a number of facts that the framers "must have" understood, but did not actually write in the constitution.

Well, you did get this right. Of course I will not rely upon strict construction since I am a textualist. Now, it is undoubtedly true the Framers understood what the U.S. Constitution said without explicitly mentioning every detail. Words do have a limited range of meaning and this was true when the U.S. Constitution was composed and ratified. We are not talking about a document nobody in the country understood. We are not talking about a document written in hieroglyphics but the English language, and such words had a meaning at the time.

The Framers understood what "regulate commerce among the states" to mean, without including a long list below it to demonstrate their understanding. They Framers understood the phrase of to declare war, to borrow money, establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States, without making a detailed list.

Interestingly, you then suggest that the fact that the framers must have had in mind the law and judicial policies of a foreign country (England) is proof that they would have disapproved consideration of foreign laws. There's more than a little inconsistency here, no?

No. Nice try though but my position does not have any inconsistency, or at least not the inconsistency you suggest.

And I don't know (and I doubt that anyone else really knows) whether or to what extent those old English judges considered foreign laws.

Well, we do know because we still have those opinions. It is common in law school to read judicial opinions from a long time ago in England.

One thing I know the judges didn't rely on back then is law review articles. I know that because I'm fairly certain law review articles didn't exist.

True but they relied on material close to law review articles, such as the writings of Sir Blackstone and Coke.

 

[NotreDame]

Fine, but what if interpretation of the 8th amendment leads the court to the conclusion that the framers intended the meaning of "cruel and unusual punishment" to evolve with the "standards of decency that mark the progress of a maturing society"? Would it then not be reasonable to consider contemporary foreign law?



Wrong. One way it's useful is for empirical evidence of various policies. When courts are considering one policy over another, or the effects of one decision versus another, how is it not useful to look to nations that have made these decisions already?

In regards to your first paragraph and your query, I would need to know whether "society" was a reference to a global society or American society?

In regards to your second paragraph, it is not useful to consult contemporary laws of a foreign nation when interpreting the U.S. Constitution for reasons I already noted in a reply to Jayem.

 

[manchambo]

No. Nice try though but my position does not have any inconsistency, or at least not the inconsistency you suggest.

This is not a response. At all. The framers' reliance on foreign legal principles shows their disapproval of reliance on foreign legal principles. That's your point. And it's inconsistent.


Well, we do know because we still have those opinions. It is common in law school to read judicial opinions from a long time ago in England.

I know that very well. I read those decisions when I was in law school. And I noticed that they didn't cite any type of authority to anything like the degree that they do today. Did you notice that? If you take the citations in those opinions as an indication of what judges should read and cite, the sources would be extremely limited.



True but they relied on material close to law review articles, such as the writings of Sir Blackstone and Coke.[/QUOTE]

So it's OK to rely on material "close" to material the old-timey judges relied on. I think that foreign decisions and laws are "close" to domestic decisions and laws. At least as close as law review articles are to Blackstone. Problem solved.

 

[NotreDame]

This is not a response. At all. The framers' reliance on foreign legal principles shows their disapproval of reliance on foreign legal principles. That's your point. And it's inconsistent.

No this is not my point. In fact, there is absolutely nothing I said remotely close to making this remark. You are terribly confused. In point of fact, my point is exactly and absolutely contrary to your remark above. Thanks for the strawman argument though, it was a good mental exercise for me to find it.

So it's OK to rely on material "close" to material the old-timey judges relied on. I think that foreign decisions and laws are "close" to domestic decisions and laws. At least as close as law review articles are to Blackstone. Problem solved.

No they are not for all the reasons I previously mentioned.

 

[manchambo]

No this is not my point. In fact, there is absolutely nothing I said remotely close to making this remark. You are terribly confused. In point of fact, my point is exactly and absolutely contrary to your remark above. Thanks for the strawman argument though, it was a good mental exercise for me to find it.



No they are not for all the reasons I previously mentioned.

What I see in your previous responses is the construction of an actual straw man. You posit that a judge might consult Iranian law for construction of the establishment clause as if a judge ever has, or ever would, do that. What you know very well (or at least ought to know) is that judges consult foreign laws only when there is some reason in logic that to believe that the comparison is pertinent. (That, incidentally, is no more or less of a problem in consulting domestic law. We surely wouldn't want judges consulting totally inapplicable decisions or laws even if they come from the US.)

On the inconsistency of your general thesis, I am having trouble understanding how you fail to recognize that, by asserting that the framers relied on and approved English common law principles of judging, they relied on and approved foreign legal principles. England was and still is a foreign country, no? Is it OK now to rely on English decisions? If not, when did it stop being permissible?

 

[Marek]

In regards to your first paragraph and your query, I would need to know whether "society" was a reference to a global society or American society?

The Supreme Court was clearly referring to a global society because it went on to cite foreign sources. But I think it's clear that the framers implied that our interpretation of "cruel and unusual punishment" should be based on global standards as well. If you look at the language of the Declaration of Independence, the unalienable rights that must be protected are not based on our nationality, but our humanity.

You also might want to check out The Federalist #63:

An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?

Or is Madison horribly misguided here as well?

In regards to your second paragraph, it is not useful to consult contemporary laws of a foreign nation when interpreting the U.S. Constitution for reasons I already noted in a reply to Jayem.

And I provided a clear example of one way in which it is useful: empirical evidence in policy decisions.

 

[NotreDame]

What I see in your previous responses is the construction of an actual straw man. You posit that a judge might consult Iranian law for construction of the establishment clause as if a judge ever has, or ever would, do that. What you know very well (or at least ought to know) is that judges consult foreign laws only when there is some reason in logic that to believe that the comparison is pertinent. (That, incidentally, is no more or less of a problem in consulting domestic law. We surely wouldn't want judges consulting totally inapplicable decisions or laws even if they come from the US.)

On the inconsistency of your general thesis, I am having trouble understanding how you fail to recognize that, by asserting that the framers relied on and approved English common law principles of judging, they relied on and approved foreign legal principles. England was and still is a foreign country, no? Is it OK now to rely on English decisions? If not, when did it stop being permissible?

What I see in your previous responses is the construction of an actual straw man.

No, I did not construct a strawman. What I did say, however, is based on the logic of those advocating the U.S. Supreme Court may consult foreign law when interpreting the U.S. Constitution, then it follows the U.S. Supreme Court may consult Iranian law when it comes interpreting the free speech clause and the religion clauses of the 1st Amendment. This is not a strawman argument but an inference, a statement that must be true if the reasoning of the argument is true.

What you know very well (or at least ought to know) is that judges consult foreign laws only when there is some reason in logic that to believe that the comparison is pertinent.

I find it interesting this is a rule/principle/idea I never heard of in law school and have yet to read in any case where the U.S. Supreme Court looked to foreign law. I am dubious the Court operates off of this principle at all. In addition, this alleged rule was conspicuously absent from those other posts in which I made my remark and consequently, what I identified as an inference of the reasoning from those other posts preceding your post here in which you cite this rule, is a true and accurate inference from those posts. Ergo, my remark was not a strawman.

Furthermore, even if the rule you refer to above, which I have never read or heard of until now, does exist, this is not an impediment to consulting Iranian foreign law to interpret the religion clauses of the 1st Amendment or the free speech clause of the 1st Amendment.

I am having trouble understanding how you fail to recognize that, by asserting that the framers relied on and approved English common law principles of judging, they relied on and approved foreign legal principles. England was and still is a foreign country, no? Is it OK now to rely on English decisions? If not, when did it stop being permissible?

My remarks could not be any more clear, however, I will provide a clarification for what is already clear. My prior remarks justify consulting English law as it existed in or around 1787 and prior to this point. My remarks, however, repudiate the notion of consulting contemporary laws from foreign nations, or the archaic laws of other foreign nations unless necessary to understand the ancient English law, when and where the English law makes a clear reference to the other foreign law as a source of understanding.

 

[NotreDame]

The Supreme Court was clearly referring to a global society because it went on to cite foreign sources. But I think it's clear that the framers implied that our interpretation of "cruel and unusual punishment" should be based on global standards as well. If you look at the language of the Declaration of Independence, the unalienable rights that must be protected are not based on our nationality, but our humanity.

You also might want to check out The Federalist #63:

An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?

Or is Madison horribly misguided here as well?



And I provided a clear example of one way in which it is useful: empirical evidence in policy decisions.

Marek, greetings:

Undoubtedly the Declaration of Independence refers to inalienable rights but I am not certain those are helpful in assisting us in understanding the substance of the rights in the Bill of Rights or the U.S. Constitution. The two are separate documents. The rights enshrined in the U.S. Constitution and the Bill of Rights, were considered natural rights, inalienable rights, some of them anyway not all, but they were not abstract ideas. The substance of these natural rights were developed through centuries and years of English statutory and common law. When they appealed to the inalienable right to be free from unreasonable searches and seizures, they were referring to the boundaries and limitations developed through the centuries by English common and statutory law. They were not referring to French law, Roman law, etcetera.

In regards to Madison's prose from Federalist number 63, I do not understand James Madison to advocate an appeal to foreign law to understand and interpret the U.S. Constitution. I think Madison is actually referring to the policies and statutory considerations and laws of Congress and the executive branch.

James Madison, on more than one occasion, while in the House of Representatives had the opportunity to discuss the methodology for interpreting and understanding the U.S. Constitution and he never once mentioned taking a glance to foreign law.