Citation to foreign decisions in constitutional adjudication.

• Position: Twenty Ninth Annual Donahue Lecture Series - Discussion

Citation to Foreign Decisions in Constitutional Adjudication

PANEL DISCUSSION (1)

Dean Alfred C. Aman: Good afternoon and welcome to part two of our Donahue Lecture Series. We are honored to have a very distinguished panel who will be commenting on Justice Kirby's talk that you have just heard. I want to introduce all the members of the panel all at once and then they will speak in an order that goes across the table. When they finish I am hoping that Justice Kirby will have some comments, responses, or resonances. At that point, we want to open it up to questions and discussion from the audience.

We have with us four commentators today, beginning with Professor Eric Blumenson, who needs no introduction at Suffolk Law School. He came here from criminal law practice in Seattle and later in Boston and has been teaching Criminal Law at this law school as well as Moral and Legal Philosophy, Human Rights, and Jurisprudence. He has been a Fulbright scholar in Lahore, Pakistan, and a visiting professor at the University of Witswatersrand in South Africa. He was a reporter to the Supreme Judicial Court's Criminal Rules Advisory Committee. He was responsible for drafting the first major revision to the Massachusetts Criminal Rules. His scholarly work includes a two-volume criminal law treatise, numerous articles on criminal law, human rights, and philosophy.

The Honorable John M. Greaney, our own Justice Greaney, is the director of the Macaronis Institute for trial and Appellate Advocacy here at the law school. He also, as you know, is someone who shares his wisdom and experience in the classroom, teaching Constitutional Law this semester, perhaps to many of you in the audience. Prior to joining the faculty at Suffolk University Law School, he was a justice of the Supreme Judicial Court of Massachusetts for twenty years. He received his B.A. with honors from the College of the Holy Cross, and his J.D. from New York University Law School, where he was a Root Tilden Scholar and Chairperson of the Annual Survey of American Law. After law school, he was a practicing lawyer, a trial judge and an appeals court judge. He has co-authored several books and numerous articles and has lectured and spoken frequently in connection with judicial and law-related programs. It is really a great pleasure to have this distinguished panel with us and it is up to you if you want the podium or to speak from your seats. We begin with Professor Blumenson.

Constitutional Kabuki: Fidelity and Opportunism in the Foreign Law Debate

Panel Remarks: Professor Eric Blumenson

Professor Eric Blumenson: I want to start by thanking Justice Kirby for coming from so far away to deliver his very thoughtful lecture. He has provided our community and this panel with a provocative and fertile context for thinking about the use of foreign law by our judicial system, from the Supreme Court on down. I am grateful as well to the student editors of the Suffolk University Law Review for making that lecture and this dialogue possible.

I am in general agreement with Justice Kirby's conclusion that judicial opinions from abroad may be a helpful resource for American judges, and may be legitimately used and cited for this purpose. But at the outset, I note that Justice Kirby and most other commentators on all sides of the issue evaluate the use of foreign law according to a particular yardstick. That yardstick is jurisprudential legitimacy: is it a proper exercise of judicial power to invoke, and be influenced by, foreign court decisions in interpreting domestic constitutional or statutory law? That is an important question, but it excludes alternative normative criterion which might or might not generate different conclusions. If, instead, we were to evaluate the use of foreign law pragmatically, applying a consequentialist yardstick, we would ask such questions as whether doing so would allow the Supreme Court to extend the influence of human rights both abroad and at home, or whether advocates may be able to use foreign law to good effect in their cases. We might ask what the political impact of foreign citations would be on Supreme Court power and prestige, or on its persuasive powers in the particular case at issue. These are all good questions, and they may reflect the unacknowledged stakes for some of the actors on all sides whose public discussion is limited to claims concerning interpretive methodology.

In these comments, I shall focus on the opposition to Supreme Court use of foreign cases, offering first a brief taxonomy of the jurisprudential criticisms lodged against the practice, and then some thoughts on the opportunistic use of these criticisms as stand-ins for a different, more political concern--namely, how the United States should respond to a new global culture that deems national law subordinate to universal human rights norms.

The use of foreign law has become passionately contested only recently, even though the Supreme Court has cited foreign law since its beginnings. Justice Kirby mentioned the proposed Congressional resolution of 2003, one of several bills that sought to prohibit the Supreme Court from citing foreign law for any purpose. (2) That was an obvious overreach by any reasonable standard, and even Justice Scalia, the strongest opponent of citing foreign law, opposed its passage, which never came to pass.

There are some uses of foreign law by domestic courts that should be beyond dispute. These include the invocation of international treaties to which we are a party, which is the law of our land according to the Constitution's Supremacy Clause. (3) They include customary international law, also binding on American courts at least since 1900 with the Supreme Court's ruling in The Paquete Habana. (4) Nor can one reasonably question looking to a particular foreign law when the domestic governing statute explicitly incorporates that law. Judges would be violating the rule of law were they to ignore the Geneva Conventions in applying the War Crimes Act, or were they to ignore "the law of nations" in applying the Torture Victim Protection Act, since both of these statutes incorporate those laws. (5) Nor does anyone deny the propriety of looking to pre-constitutional English law in some cases, least of all Justice Scalia who, as an originalist, wants to interpret constitutional terms like "confrontation of witnesses" or "due process" by discerning their meaning to the framers in the eighteenth century. (6)

There is another use of foreign law that I believe is wholly legitimate, and quite distant from the concerns of the critics: looking to foreign opinions as a source of empirical data. A foreign court may examine and expound on the demonstrated consequences of a certain statute, or the efficiency of a grant of administrative or judicial powers; that American judges can sometimes learn from such experiences should be obvious. When Chief Justice Rehnquist, in ruling against a state assisted suicide law in Washington v. Glucksberg, (7) cited the experience of the Netherlands to support his concern that such a law might promote involuntary euthanasia, he was effectively drawing on relevant foreign facts, not foreign law. This is learning from experience, or in its ideal form, learning from social science. When courts use empirical data from other sources, no one asks if there's any problem with its provenance, or whether the ideas are purely American. Nor should they here.

Let us specify, then, the kind of citation to foreign law that is arguably problematic. The legitimately contested area is the use of foreign law that is neither incorporated into our law nor an ancestor of it, for the purpose of interpreting an American constitutional or statutory provision. A majority of Supreme Court justices believe this is appropriate in at least some cases, and they take pains to state that such foreign law is by no means invoked as binding authority that should determine the outcome. They, like Justice Kirby, argue that they look to foreign law, when they do, to learn from any insights it may offer, or to see how other countries have dealt with similar problems, or as a way to discover and question their own assumptions. (8) That sounds not much different from consulting a law review article for whatever ideas and persuasive force it might have, which has never garnered controversy.

However, critics contest that description on three counts. First, they argue that a justice who cites a foreign case is not merely drawing from it whatever persuasive value its reasoning provides, but is likely affording it some kind of weight based on its status as a court decision as well. Opinions that cite foreign cases in string cite form, without reference to its reasoning, open themselves to this objection. Is such an opinion implicitly saying that because foreign judges have so found in other cases, we should consider following suit? Critics might also unpack Justice Kennedy's words in his opinion finding the juvenile death penalty unconstitutional, that "[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." (9) Whatever weight "confirmation" offers appears to be based on the disposition of foreign cases rather than on their reasoning.

There is logic behind this idea, to be sure: If many minds agree on certain ideas that have thrived in a variety of places, all else being equal, it would be rational to give their consensus some weight. However, opponents of the practice say that doing so imposes a "democratic deficit" on American law. The decisions of foreign courts do not derive from constitutional or statutory law promulgated by our citizens or their representatives, or from judges appointed by them. Our representatives rejected the United Nations Convention on the Rights of the Child, but the Court in Roper cited it in banning juvenile capital...