Posted by Orin Kerr:
Foreign Law and the Culture Wars:
In an essay at [1]American Prospect Online, Deb Pearlstein argues that
it is perfectly normal for the U.S. Supreme Court to discuss and cite
to foreign law in the course of interpreting the U.S. Constitution --
and that conservative opposition to the practice is groundless:
Like the bogeyman critique of "judicial activism," "foreign law"
seems to have become the latest stand-in straw man for those who
aim to cast fundamentally political opposition as a principled
objection. It is hard not to conclude that vocal opponents of
"foreign law" are driven less by any real threat to U.S. legal
sovereignty than by the fear that even a conservative judge might
embrace a legal rule with which they disagree. But that danger is
also long known to the United States; it is the necessary price of
the rule of law.
I think Pearlstein misses the point. The real issue isn't
sovereignty, but the culture wars. The Supreme Court's citations to
foreign law have appeared in highly controversial cases at the heart
of a national sociopolitical divide between (for lack of better
labels) social conservativism and modern liberalism. The kinds of
foreign countries that a Supreme Court Justice might know best mostly
don't share this sociopolitical divide: 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.
Of course, the Supreme Court has to rule one way or another in its
cases, so in one sense it has to take a side. But citing and
discussing foreign law for "confirmation" of a Constitutional holding
does more than simply take a side: it is a reflection of cultural
association, an indication that at least some Justices [2]envision
themselves as part of a community that happens to be strongly
identified with one side of these highly contested debates. Those that
object to foreign law are not really concerned that foreign law is
somehow binding on the United States, or that it represents a loss of
U.S. sovereignty. To the contrary: it is the very fact that such law
is obviously not binding under traditional methods of constitutional
interpretation that makes the discussions of foreign law most
objectionable to its critics. The fact that foreign law isn't binding,
but that the Justices have gone out of their way to mention it anyway,
fosters the impression that the Justices identify themselves with a
side in the culture wars.
If you're unpersuaded, try this experiment. Imagine that instead of
citing foreign law in its decisions, the conservative majority on the
Court started citing to and discussing the Bible. In particular, let's
imagine that [3]Roper v. Simmons had come out the other way, and that
Justice Kennedy's opinion for the Court upholding the death penalty
for 16 and 17 year olds had contained the following passage:
Our determination that the death penalty is proper punishment for
offenders under 18 finds confirmation in the fact that such
punishment is recognized in the Judeo-Christian Bible. The Bible
repeatedly requires capital punishment for many offenses, and
nowhere limits this punishment to those 18 years of age. See, e.g.,
Levitucus 24:17 ("He that killeth any man shall surely be put to
death."); Exodus 21:16 ("And he that stealeth a man, and selleth
him, or if he be found in his hand, he shall surely be put to
death."). Indeed, the death penalty is mandatory for a number of
affronts against parents, which presumably would encompass many
offenses by minors. See, e.g., Exodus 21:17 ("And he that curseth
his father, or his mother, shall surely be put to death."); Exodus
21:15 ("And he that smiteth his father, or his mother, shall be
surely put to death.").
This reality does not become controlling, for the task of
interpreting the Eighth Amendment remains our responsibility. Yet
our ancient traditions and cultural heritage are instructive for
the Court's interpretation of the Eighth Amendment�s prohibition of
�cruel and unusual punishments." It is proper that we acknowledge
the overwhelming weight of authority in the Bible in favor of the
juvenile death penalty. Cf. Zorach v. Clauson, 343 U.S. 306, 313
(1952) ("We are a religious people whose institutions presuppose a
Supreme Being."). The opinion of our Judeo-Christian traditions,
while not controlling our outcome, does provide respected and
significant confirmation for our own conclusion. It does not lessen
our fidelity to the Constitution to acknowledge that the express
affirmation of certain fundamental rights recognized from the time
of Abraham simply underscores the centrality of those same rights
within our own heritage of freedom.
My sense is that most people who have no problem with the Court
citing foreign law would blow a gasket if this passage appeared in the
United States Reports. You can imagine the reaction: What on Earth
gave the Supreme Court the idea that they can rely on the Bible? This
is the Constitution, not church! If some people want to believe in the
Bible, that's up to them, but this is America and they can't foist
that Bible stuff on me! Why the strong reaction? Not because
"liberals" really only object to "conservative" results (although you
can imagine the NRO column making this argument, can't you?). The
reason, I think, is that Biblical text tends to be associated with one
side of the sociopolitical divide and is not a traditional source of
constitutional guidance. As a result, seeking "confirmation" of a
constitutional holding in the Bible would send a message that the
Justices are not just interpreting the Constitution -- they would be
doing more, expressing personal views as to which side of the
sociopolitical divide they see as their own.
To be sure, the analogy between foreign law as authority and the
Bible as authority isn't perfect. I realize that. But I think it does
capture why some conservatives feel so strongly about citations to
foreign law in Supreme Court opinions.
References
1.
http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=9456
2. http://slate.msn.com/id/2098559/
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-633
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