Did anyone catch the debate between Justice Scalia and Justice Breyer over the use of foreign law in Supreme Court opinions? A transcript is here.
First, everyone agrees that foreign law should be used for some purposes, for example to interpret treaties. But Scalia points out that the real problem with using foreign law to interpret the Constitution is that judges are not really "using" foreign law, they are just cherry picking foreign law that agrees with their position:
Now, should we say, "Oh my, we're out of step," so, you know -- or, take our abortion jurisprudence, we are one of only six countries in the world that allows abortion on demand at any time prior to viability. Should we change that because other countries feel differently? Or, maybe a more pertinent question: Why haven't we changed that, if indeed the court thinks we should use foreign law? Or do we just use foreign law selectively? When it agrees with what, you know, what the justice would like the case to say, you use the foreign law, and when it doesn't agree you don't use it. Thus, you know, we cited it in Lawrence, the case on homosexual sodomy, we cited foreign law -- not all foreign law, just the foreign law of countries that agreed with the disposition of the case. But we said not a whisper about foreign law in the series of abortion cases.
What's going on here? Do you want it to be authoritative? I doubt whether anybody would say, "Yes, we want to be governed by the views of foreigners." Well if you don't want it to be authoritative, then what is the criterion for citing it not? That it agrees with you? I don't know any other criterion to bring forward.
And, if all the judge is doing is finding law that agrees with him, then at bottom it's just an excuse for the judge to impose his own will on the Constitution in the guise of interpreting it. As Scalia pointed out, having a little good-natured fun over Breyer's use of a Zimbabwean opinion in a case about execution of mentally deficient people:
JUSTICE SCALIA: I mean, it lends itself to manipulation. It lends itself. It invites manipulation. You know, I want to do this thing; I have to think of some reason for it. What reason -- you know, I want to come out this way. Now, I have to write something that -- you know, that sounds like a lawyer, okay?
I have to cite something. (Laughter.) I can't -- I can't cite a prior American opinion because I'm overruling two centuries of practice, okay? (Laughter.) I can't -- I can't cite the laws of the American people because, in fact, only 18 of the 38 states that have capital punishment say that you cannot leave it to the jury whether the person is mentally deficient and whether that should count. So my goodness, what am I going to use?
JUSTICE BREYER: Let me -- can I --
JUSTICE SCALIA: I have a decision by an intelligent man in Zimbabwe -- (laughter) -- or -- (laughs) -- or anywhere else and you put it in there and you give the citation. By God, it looks lawyerly! (Laughter.) And it lends itself to manipulation. It just does.
Scalia also noted that the problem with using foreign law for authoritative purposes was that foreign courts weren't even talking about the American system, and their conclusion might not make a lot of sense in our context:
JUSTICE SCALIA: One of the difficulties of using foreign law is that you don't understand what the surrounding jurisprudence is so that you can say, you know, "Russia follows Miranda," but you don't know that Russia doesn't have an Exclusionary rule.
And you say every other country of the world thinks that holding somebody for 12 years under sentence of death is cruel and unusual punishment, but you don't know that these other countries don't have habeas corpus systems which allow repeated applications to state and federal court, so that the reason it takes 12 years is because he continues to file appeals that are continuously rejected.
Finally, even Breyer noted the real reason why use of foreign law to interpret the Constitution sets Americans teeth on edge. We recognize that--at the end of the day--the American people are the source of all governmental power (even the court's), and we resent a bunch of foreign guys in black robes trying to tell us what to do:
One of the most interesting phrases that I read -- to me -- in Madison is, if I can remember it -- and as I bring up at this moment, I usually forget the quotation -- but he said the American Constitution is a document of power granted by liberty, not a document of liberty granted by power. And what he's driving at is even if we end up at the same place as many European countries, the whole theory of our country is that power originates in the people and whatever power government has is delegated by those people; while in many foreign countries, even if they end up at the same place, it has been liberty that has initially been granted by a central power, whether it started out as a king or even a democratic government.
That changes the cast of mind, and it helps to explain why it's so deep in America to say, "But who are those people? We had no say. We had no say in them, in their position." And so every time I hear a criticism of my own position, which is that we should pay attention to what they say, I stop myself from complaining -- too much -- by thinking at bottom there is something good reflected here. At bottom, there is reflected a very strong American belief that all power has to flow from the people and we have to maintain a check. That's a good thing.
Scalia said he agreed with this. For what it's worth, so do I.