To understand foreign court citation: dissecting originalism, dynamism, romanticism, and consequentialism.

• Author: Ghoshray, Saby
• Position: Symposium: "Outsourcing Authority?": Citation to Foreign Court Precedent in Domestic Jurisprudence

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule."

Chief Justice John Marshall (1)

"[The] constitution [was] intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."

Chief Justice John Marshall (2)

1. INTRODUCTION

   Recent controversy surrounding citation to foreign court precedent by the United States Supreme Court has overshadowed the very decisions those citations helped create. (3) There has not been a buzz like this in the legal community since Roe v. Wade, (4) and now the legislators have joined the bandwagon as well. (5) My principal observation regarding the Court's trifecta of Atkins, Lawrence, and Roper (6) is that these decisions reveal the judiciary's eagerness to walk in stride with existing global social norms. This is not for the faint-hearted, as it requires judicial invalidation of laws that lead to either absurd conclusions, or hopeless dead-ends. The Court, therefore, looks for extra support in foreign citations as it seeks to expand the frontiers of liberty, privacy, and equal protection that were frozen within the narrow doctrines of Bowers v. Hardwick (7) and Stanford v. Kentucky. (8)

   Lawrence and Roper evoked strong sentiments for a general theory of foreign court citation. (9) This Article, however, does not seek to answer whether the Supreme Court needs to articulate a general theory for foreign citation. This would be counterproductive, as doing so would unnecessarily call into question the competent jurisprudence that resulted from those citations. Therefore, I seek to explore the issue at a more fundamental level. By understanding the foreign law jurisprudence of individual Supreme Court Justices, I will attempt to develop a framework for foreign court citation.

   This analysis will serve multiple purposes. First, by developing an individual jurisprudential profile, one seeks to gain insight into the Justices' foreign source inclination. Second, by tracking the evolution of jurisprudence, one searches for the specific practices being endorsed by foreign law. For example, Justices can cite foreign sources of law to elicit confirmation or to render invalidation of a specific doctrinal development. In both cases, however, the process reveals the philosophy and methodology of constitutional interpretation. Third, an understanding of the first two threads allows one to foresee the future trajectory for a specific brand of constitutional adjudication within American jurisprudence.

   This Article proceeds with an ambitious goal of focusing on a subset of Justices whose impact on foreign citation, I shall argue, provides a more efficient and less cumbersome framework. Furthermore, somewhere down the road, this will help to develop a comprehensive theory on foreign court citation.

   Let us take a quick preview of some Justices. Instantly, one is drawn to the Scalia-Breyer debate, (10) not because of the wide publicity it generated, but because of the judicial hyper-plane it created due to the sharp divergence within the Justices' respective interpretive methodologies. While Justice Scalia gives primacy to the literal meaning of the text and statutes, (11) Justice Breyer engages in an understanding of what meaning the Constitution held for its citizenry. (12) Since the literal meaning of the texts and statutes cannot comport to the existing social convictions, the very essence of Justice Scalia's constitutional interpretation is the immutability of the Constitution, the evolution of which is unconscionable. (13) On the other hand, Justice Breyer defends the use of foreign sources of law as part of the process from which law emerges. To him, judges in other nations "are human beings ... who have problems that often, more and more, are similar to our own. They're dealing with ... certain texts, texts that more and more protect basic human rights. Their societies more and more have become democratic...." (14)

   This view received strong rebuke from Justice Scalia as he thunders in his dissent in Roper that "the basic premise of the Court's argument--that American law should conform to the laws of the rest of the world--ought to be rejected out of hand." (15) He further elaborates, "I do not believe that approval by 'other nations and peoples' should buttress our commitment to American principles any more than (what should logically follow) disapproval by 'other nations and peoples' should weaken that commitment." (16)

   Justice Breyer seeks judicial modesty and caution in his advocacy for achievement of the Constitution's democratic purposes. (17) He is not interested in clinging strictly to the Constitution's text. Justice Breyer views the very text of the Constitution as testament to the Framers' intention for the American people, which is, to imbibe in them the spirit of "active liberty." Therefore, he compares the development of his jurisprudence to "creat[ing] a framework for democratic government--a government that, while protecting basic individual liberties, permits individual citizens to govern themselves." (18) Justice Breyer's jurisprudence does not boil down to any simple, or single, intellectual thread. Unlike the self-professed textualism of Justice Scalia, (19) Justice Breyer does not consider himself to belong to any specific intellectual group. He adheres to the idea of learning from others, while mixing in his brand of judicial pragmatism, which embraces notions of active liberty, purposiveness, and consequentialism. (20)

   In his pursuit for the best interpretation of the indeterminate text of our constitution, Justice Kennedy has sought out the laws and practices of other nations. If Justice Scalia is the originalist, (21) then Justice Kennedy should be considered the anti-originalist, as he clearly rejects the originalist ideal of defining constitutional rights by recourse to text and longstanding tradition. Contrary to traditional originalist theory, Justice Kennedy feels that the present day Americans have a better understanding of the meaning of the Constitution than the Framers themselves did. Justice Kennedy has stated that "over time the intentions of the framers are more remote from their particular political concerns and so they have a certain purity and a certain generality now that they did not previously." (22)

   It is against this backdrop that Justice Scalia disfavors the notion of sophisticated judicial interpretation, which takes into account the evolving social convictions, mainly on moral grounds. But, Justice Kennedy notes, "it sometimes takes humans generations to become aware of the moral consequences, or the immoral consequences, of their own conduct. That does not mean that moral principles have not remained the same." (23) Justice Kennedy urges us to examine the moral content of liberty from scratch in each case. He succinctly opines, "the object of [constitutional interpretation by the judiciary] is to use history, the case law, and our understanding of the American constitutional tradition in order to determine the intention of the document." (24)

   Justice Ginsburg's jurisprudence is anchored in the concept of a living, dynamic constitution. She believes that the Framers' intent will be best honored if someone reads the Constitution "as belonging to a global 21st century, not as fixed forever by 18th century understandings." (25) In her speeches and writings, she rejects outright the idea of a Constitution frozen in time. (26) She is open in her dissent to the insularity in current U.S. jurisprudence, as not being fully in consonance with the idea of looking beyond the borders of the United States when grappling with challenging and novel questions of law. She advances the argument that the Framers could not foresee the evolution of society two hundred years from its inception, and therefore could not have comprehended the consequences of law in the society today. I shall argue that Justice Ginsburg's philosophy is borne out of her own experiences as a young lawyer navigating through the morass of a myopic society still trying to evolve in gender and race issues. Perhaps that feeling of eighteenth century myopia haunts her as she embraces the legal opinions of jurists outside the United States. Many other jurists have faced similar challenges in dealing with the fundamental human principles of liberty, equality and justice.

   In this quest to understand the Supreme Court's use of foreign court citation, one would be remiss not to mention the ageless wisdom of the late Chief Justice Rehnquist. Despite his reservation toward foreign laws, he noted that U.S. jurisprudence could not stay insulated from the rising tide of comparative constitutionalism in a speech in 1993, stating:

   For nearly a century and a half, courts in the United States exercising the power of judicial review [for constitutionality] had no precedents to look to save their own, because our courts alone exercised this sort of authority. When many new constitutional courts were created after the Second World War, these courts naturally looked to decisions of the Supreme Court of the United States, among other sources, for developing their own law. But now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process. (27) While, in his later years, the Chief Justice failed to express support for the relevance of foreign law in American jurisprudence, his earlier reasoning remains sound and even more relevant today. (28)

   Exploring the trajectory of foreign citation in the Court rests on an unambiguous understanding of the jurisprudential philosophy of the Justices. This requires uncovering an established pattern of opinions for guidance in charting a...