Don’t Impose Foreign Law on Americans
By Antonin Scalia
Supreme Court Justice Antonin Scalia recently delivered these remarks at the American Enterprise Institute:
I’m talking today about the use of foreign law in American judicial opinions, and most of what I have to say is unfavorable, so I feel I should begin by pointing out that I am not a xenophobe. I don’t mind foreign law. In fact, in my years as a law professor, I used to teach foreign law. You don’t understand your own language until you’ve taken some foreign language, and I think you do not understand your own legal system—its distinctiveness, and what drives it—until you examine some other system.
I do not take the position that foreign law is never, ever relevant to American judicial opinions. It sometimes is. For example, in the interpretation of treaties, whose object is to have nations agree on a particular course of action, I am inclined to follow the interpretation of other signatories so long as it’s within the realm of reasonableness. I also think that foreign law is sometimes relevant to the meaning of an American statute. For example, our Foreign Sovereign Immunities Act permits suits for property “taken in violation of international law.” We had a case a few terms ago involving the seizure of some valuable paintings by the Nazis. Obviously, whether the person seeking to have the paintings restored was entitled to them depended upon whether that person owned the paintings—and that was a question of Austrian law. So we obviously had to consult Austrian law for that purpose.
I think foreign law can also profitably be discussed in the opinions of U.S. courts where it is consulted to predict results of a particular ruling. You can look to foreign law and say, gee, they did this in Germany and the skies didn’t fall. That’s certainly a very valid use of foreign law.
But those are not the uses that worry people. I think people are concerned principally about the use of foreign law in the interpretation of the United States Constitution. Even there I have to tell you I cannot say it is never relevant. Of course, the foreign law I think is relevant is very old foreign law. Very old English law—because what is meant by the terms of our federal Constitution depended upon what Englishmen in 1791 considered due process of law, what they considered to be cruel and unusual punishments, and so forth. So I use foreign law all the time. But it is all very old English law.
What about modern foreign legal materials? Well, that is where I get off the boat. It is my view that modern foreign law can never be relevant to an interpretation of the meaning of the United States Constitution.
Yet the Supreme Court has recently expanded the use of foreign law. In Lawrence v. Texas, decided in 2003, the Court relied upon action of the British Parliament and a decision of the European Court of Human Rights in declaring that laws punishing homosexual conduct were un-Constitutional in America.
I expect, and fear, that the Court’s use of foreign law in the interpretation of our Constitution will continue at an accelerating pace. And I think this for three reasons. First, because the “living Constitution” paradigm of interpretation prevails on today’s Court, and indeed in our legal community generally. Under this view, it is the task of the Court to make sure that the current Constitution comports with “the evolving standards of decency that mark the progress of a maturing society.” Once you assume the power to revise what the Constitution requires in order to keep it up to date, you are effectively engaged in the process of writing your Constitution anew, and there is no reason whatever not to consult foreign materials in doing it.
The second reason foreign law is likely to be used increasingly is Sir Edmund Hillary’s reason—because it’s there. Let’s face it: it’s pretty hard to put together a respectable number of pages setting forth reasons for newly imposed Constitutional prescriptions or prohibitions (as a legal opinion is supposed to) that do not at all rest upon one’s moral sentiments, one’s view of natural law, one’s philosophy, or one’s religion. Decisions on such matters, whether taken democratically by society or undemocratically by courts, often have nothing to do with logic or analysis. So judicial opinions will be driven to philosophic or poetic explanations—such as appeared in the Supreme Court decision not so long ago asserting that at the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and of the mystery of human life.
It will seem much more like a real legal opinion if one can cite authority to support the philosophic, moral, or religious conclusions being pronounced. And foreign authority can serve that purpose. You can cite the name of the case, and it even has authoritative numbers after it. It looks very legal.
The third reason foreign law will be used increasingly is a pragmatic one. Adding foreign law to the box of available legal tools is attractive to judges because it vastly increases the scope of their discretion. There is something out there for everybody to use, in one part or another, depending upon the result the court wishes to reach. In the Supreme Court’s Lawrence ruling, European law was cited to strike down sodomy laws. But of course Europe is not representative of the whole world, and other bits of international law could just as easily have been pulled into the argument. Consider that eight out of 43 countries in the Americas prohibit sodomy, as do 27 out of 47 Asian/Pacific countries, 33 out of 51 countries in Africa, and 11 out of 14 countries in the Middle East.
Thus, the rest of the world aside from Europe is about evenly split on the issue. And even the uniformity in Europe doesn’t necessarily express the democratic preferences of European citizens. It expresses the solution imposed by the European Court of Human Rights.
Our Supreme Court’s reliance on foreign sources has not only been selective in terms of which foreign laws are consulted. It has also been selective as to when foreign law is consulted at all. For example, allowing states to restrict abortion is actually a position the U.S. shares with a majority of foreign countries. According to the U.N., the United States is now one of only 53 countries classified as allowing abortion on demand, versus 139 countries that allow it only under particular circumstances, or not at all. Among those countries the U.N. classified as not allowing abortion on demand were the U.K., Finland, Iceland, India, Ireland, Japan, Luxembourg, Mexico, New Zealand, Portugal, Spain, Switzerland, and nearly all of South America. Yet the Court has generally ignored foreign law when justifying its abortion cases.
If there was any thought absolutely foreign to the founders of our country, it was the notion that we Americans should be governed the way Europeans are. In Number 46 of the Federalist, to take just one example, James Madison speaks contemptuously of the governments of Europe which are “afraid to trust the people with arms.” Are we now to revise the Second Amendment because of what these other countries think?
I dare say that few of us here would want our life or liberty subject to the disposition of French or Italian criminal justice—not because those systems are unjust, but because we think ours is better. What reason is there to believe that the dispositions of a foreign country are so suitable to the morals and manners of our people that they should be judicially imposed through Constitutional adjudication? And is it really an appropriate function of judges to say which foreign laws we pick up, and which we don’t?
I think not.
