The dynamic incorporation of foreign law and the constitutional regulation of federal lawmaking.

Author:Larkin, Paul J., Jr.
Position::III. The Constitutional Issues Raised by the Lacey Act's Delegation of Federal Lawmaking Authority A. Article I Problems with the Lacey Act 1. The 'Intelligible Principle' Requirement b. Laws Imposing Criminal Liability Must Be Written in English through V. Conclusion, with footnotes, p. 387-436
  1. Laws Imposing Criminal Liability Must Be Written in English

    Being able to find a foreign statute, regulation, nonlegislative rule, or agency decision is just the first step. A law exposing someone to criminal liability must be written in terms that satisfy two related requirements: (1) it must enable "a person of ordinary intelligence" to readily understand what it means and (2) such a person must be able to do so without legal training or advice. (208) The second requirement is no less important than the first. A criminal statute must be understandable by "ordinary people" (209) or by "a person of ordinary intelligence," (210) not simply by lawyers, law professors, judges, or experts in foreign or international law. (211) A law is unconstitutionally vague if it "fails to give a person of ordinary intelligence"--not an import-export expert or a linguist--"fair notice that his contemplated conduct is forbidden by the statute." (212)

    To satisfy that requirement, Congress writes federal laws in English. English was "the same language" spoken by the "people" at the founding, (213) it is the language used by the Constitution, and it remains the mother tongue in the United States today. Foreign countries similarly use whatever language is native to their own lands. Sometimes that will be English, but not always. Variety abounds.

    That is perfectly reasonable when the issue before a legislature is deciding what language to use when legislating for domestic law enforcement purposes. Each one will use whatever language best notifies its residents of what the law demands. But it would be perfectly unreasonable for any legislature to expect that residents or travelers will be fluent in every world language. It would be absurd for American criminal law to require someone in this country to know German, Hungarian, Chinese, Vietnamese, Pashtu, and the scores of other languages and dialects used around the world on pain of domestic criminal liability for violating a law written in one of those languages. Anglo-American criminal law never has required parties in this country to know any let alone all of those languages to avoid criminal liability for engaging in facially legitimate conduct. It may or may not be reasonable for a state to compel English to be used as the only language for all domestic legal purposes. (214) But since English is the language predominantly used in this nation and criminal laws must be written in terms understandable to the average person, it is unreasonable for a legislature to subject parties to criminal liability for failing to comply with legal requirements written in a foreign language. If English language terms such as "annoying" are too vague to satisfy due process requirements, (215) they are no more understandable when written in Urdu as "[TEXT NOT REPRODUCIBLE IN ASCII]" or in computer code as a series of "0s" and "1s." (216)

  2. Laws Imposing Criminal Liability Must Be Readily Understandable by the Average Person

    An additional requirement is that a foreign law must be identifiable as a "law." Yet, foreign nations may define their "law" to embrace edicts with no parallel or counterpart in our legal system. "Law" in the United States refers to constitutions, statutes, ordinances, regulations, judicial decisions, and executive branch interpretations of one or more rules. (217) Different parties adopt each different type of law. The public has the ultimate power to revise the constitution, federal or state, which charters those governments. (218) Legislatures enact statutes. Executive officials promulgate regulations and, formally or informally, interpret statutes and regulations. (219) Finally, courts interpret all of the above when necessary to resolve a dispute (220) and can hold one or more of them invalid if necessary. (221) There also is a clear ordinal relationship in this country for the weight given to the various types of domestic laws. The Constitution enjoys the preeminent role, followed by federal statutes and treaties, agency regulations, (sometimes) agency policy statements, and state counterparts of the above rules, followed by municipal versions. (222)

    Foreign nations may approach the lawmaking function in a different manner. They may have fewer, more, or different ways of creating law, or they may give different weights to the types of law that their authorized entities can produce. They may treat the violation of a national custom as a crime even if no other land criminalizes that conduct. Their courts may resolve disputes, but their decisions may not have precedential value. (223) That possibility greatly complicates the problem that someone would have in knowing what may and may not be done overseas. It makes necessary familiarity with the text and interpretations of foreign laws, the legal and political organization that a foreign nation uses to promulgate or interpret its own law, and the customs that fill out its rules of conduct. (224) The result could be an inordinate amount of complexity, far beyond what any person can be assumed to know. (225)

  3. Laws Imposing Criminal Liability Must Be Fixed and Precise

    A further complication arises because of the subject of the Lacey Act: the environment. Our Constitution is silent on environmental issues because that subject was not a concern when our nation was founded. (226) The colonial economy was based on agriculture or trade. Chlorofluorocarbons and polychlorinated biphenyls were not on the horizon. The Industrial Revolution changed all that. Pollution is an unfortunate, albeit unavoidable, consequence of modern manufacturing, and the law has developed in response. (227) Numerous federal statutes and agency regulations address pollution emitted into the air, water, or land. (228) A goodly number of foreign nations, however, have complicated the notice problem by addressing the environment in their own constitutions. As of 2006, the constitutions of sixty-three foreign nations guaranteed a right to a healthy environment. (229) Twenty-nine constitutions have provisions safeguarding the right to enjoy the benefit of the country's natural resources, which could embrace national parks, monuments, and the like. (230) Those provisions raise a host of potentially difficult interpretive issues. (231)

    The first issue involves the reach of foreign constitutions. All but one provision in our Constitution applies only to actions by the government, at the federal, state, or local level. The Thirteenth Amendment's ban on slavery and involuntary servitude is the one exception: it applies to private conduct as well. (232) Each of the remaining provisions requires "state action" before it is triggered. (233) Other nations, however, may have no such state action requirement. They may use their constitutions in the same manner that we use statutes and regulations. (234) The result is that the Lacey Act might incorporate prohibitions on conduct that would not be unlawful if done in this nation, because only private parties are involved.

    How the national constitution applies to the government in foreign nations also may differ from what Americans are accustomed to seeing. The United States has a federal system. The Constitution structures the national government, but not the states, which can create different frameworks. (235) The Bill of Rights does not directly apply to the states, but the Supreme Court has held that the Fourteenth Amendment Due Process Clause incorporates most of the guarantees in those first ten amendments. (236) For most practical purposes, therefore, the public can reasonably conclude that the Constitution protects them against government overreaching, regardless of whether a federal, state, or local official is responsible. Foreign nations, however, may structure their national government in a manner that is quite unlike our tripartite national system and equally unfamiliar to an average person. In fact, few other countries have a federal system like our own. (237) Foreign countries are free to select two, four, or more branches of government; in the case of a crown or dictatorship, just one branch. If the country is ruled by the military, a handful of generals may hold all of the power. Most foreign nations do not have a president and bicameral legislature like Congress. Most nations use a parliamentary form of government, which effectively combines the two branches into one that performs all three functions. (238) That distribution can make it difficult to determine the weight to give to the decisions each branch makes. Moreover, a foreign nation can apply different rules to different government units. Some units may be free to engage conduct forbidden to others, making it difficult to know precisely what actions various officials may forbid or condone.

    In the United States, our government is "a government of laws, and not of men," (239) and "[i]t is emphatically the province and duty of the judicial department to say what the law is." (240) Foreign nations may have their courts play a very different role. Americans take for granted that, if charged with a crime or civil violation, they can challenge the constitutionality of the relevant law in the court where they must stand trial. (241) Defendants prosecuted in other countries may have no such right. (242) Most, but not all, foreign constitutions authorize judicial review of legislation, although few use the particular form found in our Constitution. (243) Some countries will have one entity that can speak authoritatively about the constitutionality of its own laws; others may not. (244) Some foreign governments may assign to different bodies authority over the same subject matter; others may grant one department the power to promulgate laws, to interpret them, and to enforce them. (245) Some nations may incorporate international norms into their domestic law; others may not. (246) Different branches or components within foreign governments may change their interpretations...

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