It is misleading to characterize the law to which U.S. Supreme Court justices have cited in a number of recent decisions (e.g., Lawrence) as "foreign" law. Depending on the case, the law cited was either a U.S. treaty obligation (Convention to Eliminate All Forms of Racial Discrimination in the Michigan affirmative action case) or reflective of a U.S. customary international legal norm (ECHR cases in Lawrence). Both Scalia and Rehnquist have mischaracterized this international law as merely foreign domestic law in a number of cases. Because amici referred to this law not as foreign law but as a U.S. treaty obligation or reflective of a U.S. customary international legal norm in these cases (see, e.g., Koh and Wilson briefs), I am starting to believe that Scalia and Rehnquist may have been disingenuous in characterizing this law as merely "foreign."
Francisco Forrest Martin
President
Rights International, The Center for International Human Rights Law, Inc.
----- Original Message -----From: Louise WeinbergSent: 8/4/2003 3:43:28 PMSubject: Re: Referring to Foreign LawDear Bob,I disagree with this some of the analysis you offer in your email below. You urge the wisdom of at least considering foreign views. The suggestion sounds progressive. Yet where Congress has spoken, and the conduct in question is rationally within Congress's legitimate areas of concern, it seems plainly wrong to create an opportunity of judicial discretion to disregard the act of Congress. In all cases in which our national interests are engaged, even where foreign law would seem better to vindicate our own interests than our own case law, it would be more direct and honest to adopt rather than apply foreign law ~ that is, to change our law to reflect our true policies ~ rather than to let foreign law "govern." It also may turn out much of the time that, since we are a democracy, or try to be, our law is actually the more progressive, or "better" law. I don't mean to be arrogant ~ "better law" is simply a term of art (albeit a controversial one) ~ in the conflict of laws. For example, I would not like us to be so "sensitive" to foreign sensibilities that our courts will validate foreign disabilities imposed abroad on American women. Congress agreed with this view in prospectively overriding the Aramco case in the Civil Rights Act of 1991 (I think). I used to write a lot about this sort of thing. I had a piece in Georgetown, "Against Comity," which has some of the extended argument and contains cites to the rest of it.
Best,
Louise
At 02:10 PM 8/4/03, you wrote:
I was [a little] surprised to see the objection by Scalia to referring to
foreign law as some authority, and, if memory serves, Thomas as well in a
different case.
What strikes me is that we incorporated 'foreign' law wholesale when we
adopted the Constitution, the product of English, French, and Roman
political thought and process. Montesquieu comes to mind, as does the
Senate and the English Common Law up to independence. Jefferson admired
the French and we loved it at the time of Citizen Genet when they seemed to
validate our revolution by having one of their own.
When we get into our occasional periods of national neurosis, not to say
psychosis, we seem to get caught in a process that we have difficulty
freeing ourselves of. Jim Crow and the McCarthy Red-scare experience, for
example. Apart from flailing around until the tide recedes, we might do
well to accept a life ring from the hand of a foreign source.
To refuse even to consider foreign law, and cite it, seems a triumph of
parochialism. If natural law, which sometimes seems a bit supernatural,
has sometimes counted in Conlaw, then why not foreign law, which at least
may have the virtue of having its feet on the ground of someone's
experience.
Are conservatives more parochial than liberals, by nature?
Predictors of conservatism are said to be: fear, aggression, dogmatism,
authoritarianism, tolerance of inequality, intolerance of ambiguity,
resistance to change and lack of "integrative complexity."
This from an August 3 article by Insight staff writer Vicki Haddock
published in the San Francisco Chronicle (try sfgate.com) concerning
researchers Jack Glaser, Ph.D. psychology, of UC Berkeley's Goldman School
of Public Policy and John Jost, Stanford Graduate School of Business re: a
study of studies of conservatives in an article they had published in the
Psychol ogical Bulletin of the American Psychological Ass'n.,
National Review Online columnist Jonah Goldberg called the research "more
bogus than a $6 Rolex," stating "If you think left-wingers have a high
tolerance for ambiguity, try telling them a factory closing can be a good
thing," and going on to say, "Liberalism in America is almost entirely
reactionary," citing the last presidential election where, he says, "the
Democratic rhetoric was all about 'stopping' Big oil, Big tobacco, Big this
and Big that."
Robert Sheridan
[EMAIL PROTECTED]
SFLS
> [Original Message]
> From: Francisco Martin <[EMAIL PROTECTED]>
> To: <[EMAIL PROTECTED]>
> Date: 8/4/2003 10:22:25 AM
> Subject: A washingtonpost.com article from: [EMAIL PROTECTED]
>
> You have been sent this message from [EMAIL PROTECTED] as a courtesy of
washingtonpost.com
>
> Thinking Outside the U.S.
>
> By Charles Lane
>
> The Supreme Court is going global -- and not just in the sense that
several of the justices have embarked on their annual summer voyages to
European destiinations.
>
> Rather, the court's own decision-making is beginning to reflect the
influence of international legal norms, as well as rulings by courts in
foreign countries.
>
> The trend peaked in the two most important cases of the recently
completed term -- the court's rulings permitting race-conscious admissions
in higher education and abolishing state prohibitions on private,
consensual homosexual conduct.
>
> In both cases, justices invoked legal principles that were not made
exclusively in the United States.
>
> In the affirmative action case, Justice Sandra Day O'Connor wrote for a
5 to 4 majority that the University of Michigan Law School's effort to
enroll a "critical mass" of black, Latino a nd Native American applicants
could pass muster under the U.S. Constitution -- though such programs might
not be necessary 25 years from now. Justice Ruth Bader Ginsburg wrote a
separate concurrinng opinion, joined by Justice Stephen G. Breyer, that
noted that the court's 25-year time frame was consistent with the
International Convention on the Elimination of All Forms of Racial
Discrimination, ratified by the United States in 1994, but that it should
not be considered a firm forecast.
>
> More decisively, Justice Anthony M. Kennedy buttressed his majority
opinion in the homosexual conduct case by noting that the court's past
approval of state sodomy bans was out of step with the law in other Western
democracies. Citing opinions of the European Court of Human Rights, he
wrote that "the right the petitioners seek in this case has been accepted
as an integral part of human freedom in many other countries."
>
> The court's consideration of these international perspectives was a
breakthrough for the "transnational" legal perspective, which, advocates
say, recognizes that the United States -- historically an innovator in
constitutional adjudication -- now has much to learn from the rapidly
developing constitutional traditions of other democracies.
>
> "Human rights progress is not the same in every part of the world at the
same time," said Harold Hongju Koh, a professor of international law at
Yale who served as assistant secretary of state for democracy, human
rights and labor in the Clinton administration. "In the U.S., we're ahead
on some issues, but behind on others, such as the death penalty, gay rights
and immigrants' rights."
>
> Koh noted that the court's 2002 ruling banning the death penalty for
mentally retarded criminals also invoked international opinion. In
explaining why that practice violated contemporary notions of permissible
punishment, Jus tice John Paul Stevens writing for a 6 to 3 majority, said
that "within the world community, the imposition of the death penalty for
crimes committed by mentally retarded offenders is overwhelmingly
disapproved." Stevens attributed this observation to a friend-of-the-court
brief filed by the European Union.
>
> This approach is not without its critics, however, and some of the
sharpest criticism has come from within the court itself, especially from
Justice Antonin Scalia.
>
> Responding to Stevens in the death penalty case, Scalia sardonically
awarded Stevens's reference to the "world community" a "Prize for the
Court's Most Feeble Effort to fabricate 'national consensus.' "
>
> Citing his own words from one of the court's previous death penalty
cases, Scalia wrote: "We must never forget that it is a Constitution for
the United States of America that we are expounding. . . . [W]here there is
not first a settled consensus among our own people, the views of other
nations, however enlightened the Justices of this Court may think them to
be, cannot be imposed upon Americans through the Constitution."
>
> Scalia's view is supported by conservative legal scholars who regard the
court's use of international legal sources as an intellectually amorphous
endeavor that would subject U.S. citizens to the decisions of foreign
legal institutions. "When the court starts taking things like that into
account, it reveals itself as more interested in making policy than
interpreting the fixed texts of the Constitution or statutes," said John C.
Yoo, a former Bush administration adviser on international law, who teaches
law at the University of California at Berkeley.
>
> Koh and Yoo agree on one thing: Both said that the justices' interest in
international law has probably been influenced by meetings with fellow
jurists on their frequent visits abroad.
>
>&nbs p; "Today, the justices are traveling much more than they once did," Koh
said. "And when they go overseas, the question they are asked is, 'How does
your jurisprudence fit in with that of other countries?' "
>
>
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