Citing foreign and international law to interpret the constitution: what's the point?

• Author: Baker, Jr., John S.
• Position: Symposium: "Outsourcing Authority?": Citation to Foreign Court Precedent in Domestic Jurisprudence

Some years ago, I was lecturing in Brazil and Argentina on constitutional issues, and I spoke one day to a group of Brazilian judges on criminal procedure and due process rights in the United States. When I was finished, up stood one very frustrated Brazilian judge who complained that when prisoners come into his court, they demand their "Miranda rights."

I had several reactions to the judge's revelation. First of all, I could understand his frustration that a foreign system was injecting its law into his courtroom. As a prosecutor, I remember that even some state judges didn't like lawyers interjecting federal law into their courtroom--as if it were "foreign" law. With judges from other countries, there must be a special sense of resentment at the claimed superiority--sometimes--of United States law. My other reaction was, in a way, a sense of pride of the influence of American law. Actually, this was not so much evidence of the influence of American law as it was of the power of American media, film, and television. I realized that prisoners in Brazil, and probably all over the world, know just as much about the U.S. Constitution as the typical American student. That is, what they know about the U.S. Constitution they have learned from "cop" shows and movies which address the issues of criminal procedure--from arrest through trial.

There is much more to the U.S. Constitution, of course, than just what's portrayed on television and in the movies. Nevertheless, in this age of globalization, the message of the media shapes the worldwide understanding of U.S. legal culture. We live in a world, which has become much more wired than it was when I gave those lectures years ago in Brazil. Back then, you had only radio, television and film, all of which offer only one-way communication. Now, with the Internet, communication is much more interactive. So now one might ask: why shouldn't Americans listen to what others around the world have to say on issues that affect them, just as well as they do us? Indeed, Americans are more insulated than people in many other countries. It is often embarrassing when traveling abroad to have people ask, what do people in the United States think about us? The truth of the matter is that people in the United States rarely think about those outside of the United States. What most Americans know about other countries comes from watching television news reports--usually tragedies about events such as bombings in Israel or Iraq.

Many people outside the United States know more about U.S. politics than most Americans do. What the U.S. does affects them much more than what their countries do affects the U.S. When you watch news abroad, what you often see is what we would call local U.S. news. Of course, what you hear is not the same kind of commentary. But maybe that's the point. If people of other nations know a great deal about the U.S., why not listen to their views? Shouldn't we have a two-way communication, instead of just those of us in the United States expressing views on matters affecting political power, culture, law, etc.? This seems to be the question some members of the U.S. Supreme Court are asking themselves.

Although a constitutional originalist, I am also, however, a comparativist. I appreciate the importance of understanding international and foreign law. Indeed, to be an originalist, I believe, requires some understanding about international and foreign law. International law, known at the founding as the "law of nations," is background for much in our Constitution. (1) Federalism derives from ancient treaty arrangements; in other words, federalism is drawn from what we would call international relations. In discussing federalism, for example in The Federalist Papers, the Framers demonstrated their knowledge of the ancient federations of Greece and Rome, as well as those of Switzerland and the Netherlands. (2) Those who drafted the Constitution viewed them as undesirable models and deliberately chose not to follow any of them! (3) Madison, in particular, studied them and concluded that these federations were defective as governments. (4) The Framers, as well as those who opposed the Constitution, also studied a Frenchman named Montesquieu, who made profound observations about separation of powers and federalism. (5) Both the Federalists and the Anti-Federalists agreed on the principle of separation of powers as articulated by Montesquieu, although they disagreed about what he meant. (6) The Federalist, drawing on Montesquieu's endorsement of a "confederate republic," created the innovation of a federal government, as distinguished from a confederacy. (7)

Foreign domestic law is also interesting in many ways. When you look abroad at modern codes, you learn that codes exist within the context of very different constitutional systems. Most American lawyers know only the common law system which exists in the United States and which is similar to that of England, Canada, and Australia. (8) The civil law reigns in most of the rest of the world, where legislative codes dominate. (9) Rooted in the Roman civil law, these codes are creations of nation-states formed at the beginning of the nineteenth century. (10) The French and German codes primarily have influenced codification throughout the world. (11)

What are the fundamental differences between common law and civil law countries? Why do other countries write codes? Historically, legislative codes have been a means to limit judges in their discretion, consistent with a constitution based on legislative supremacy. (12) Codification is supposed to be a complete expression of law. (13) As such, codes are to be applied with little or no creativity from judges. (14) If so, how is it that the European Court of Justice has become a very "creative" court? In my view, the European Court of Justice blends some elements of both the common law and civil law approaches.

American lawyers and legal academics have for years preached abroad that what other countries really need are more powerful judges. The European Treaties have created a court where the judges are independent of, and operate from a superior position to, the countries that chose them to be judges. They interpret treaties that lack the integration found in a code. Convinced that it is for the court to mold Europe, judges of the European Court of Justice have engaged in a common law style of judging. These code-trained lawyers, however, lack the common law appreciation for the importance of procedure. A civilian legal education differs significantly from a common law education in the U.S. The civilian approach is deductive, working from general principles. Procedure is simply not an important part of the academic education of most European lawyers.

Before borrowing from other legal systems, one needs an understanding of the foreign legal context. Remember that Lafayette took his experience in our Revolution, with his rhetoric of rights, back to France. (15) But France produced a very different type of revolution based on an abstract concept of rights not grounded in history and procedure. The seed taken from America and planted in French soil gave rise to a very different form of liberty.

Cross-pollination is not necessarily a bad thing. Indeed, at the founding, the U.S. borrowed not only from England but also from the continental Europe. But I suggest that the more you learn about other countries and their constitutional and legal systems, you will realize how...