The deadly controversy over the value (vel non) of foreign opinion

This one slipped totally under my radar screen. Here we have a burning issue questioning one of the "givens" of my legal training and I just didn't know it. The question is, should jurists give any consideration whatsoever to the reasoning found in foreign thought, discourse and decision-making.

I was taught that there was an hierarchy of material that you could turn to to try to pursuade a court. At the top of the pile, and most authoritative, was the reasoning and decisions of your own highest court, whatever jurisdiction you happened to be in. Near the bottom of the pile, and not authoritative as such but perhaps instructive, pursuasive or illustrative, either negatively or positively, was the legal scholarship and judgements of foreign jurisdictions.

But that appears to be heretical humbug in some corridors, such as those of the US Congress, and to some powerful judicial places, like the US Supreme Court (hint: Scalia).

US Justice Ruth Baden Ginsburg recently gave a speech on the subject at a conference in South Africa, and the following comes from that speech.

But before I turn to the topic at hand, I want to pick out an aside in her speech which may give some background as to why former Justice O'Connor chose to give her speech warning of the path the US could be on to dictatorship in such a low-key fashion. Ginsburg said:

The U.S. Supreme Court's Marshal alerted Justice O'Connor and me to a February 28, 2005, web posting on a "chat" site. It opened:

Okay commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases.

This is a huge threat to our Republic and Constitutional freedom. . . . If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.

I feel let down by my law school (Univ Cal, Hastings College of Law). They should have given warnings that we could end up on a right-wing hit list if we cited to foreign laws and rulings. Maybe I should sue.

But getting back to the subject, here are a few excerpts from her speech to give you a flavour of the controversy. You should take the time to read the whole speech.

In the United States the question whether and when courts may seek enlightenment from the laws and decisions of other nations has provoked heated debate. I will speak of that controversy in these remarks. At the outset, I should disclose the view I have long held: If U.S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others including Canada, South Africa, and most recently the U. K. - now engaged in measuring ordinary laws and executive actions against charters securing basic rights.

In the value I place on comparative dialogue - on sharing with and learning from others - I draw on counsel from the founders of the United States. The drafters and signers of the Declaration of Independence cared about the opinions of other peoples; they placed before the world the reasons why the States, joining together to become the United States of America, were impelled to separate from Great Britain. The Declarants stated their reasons out of "a decent Respect to the Opinions of Mankind." They set out in the Declaration a long list of grievances, in order to submit the "Facts" - the "long Train of [the British Crown's] Abuses" - to the scrutiny of "a candid World."

The U.S. Supreme Court, early on, expressed a complementary view: The judicial power of the United States, the Court said in 1816, includes cases "in the correct adjudication of which foreign nations are deeply interested . . . [and] in which the principles of the law and comity of nations often form an essential inquiry." "Far from [exhibiting hostility] to foreign countries' views and laws," Professor Vicki Jackson of the Georgetown University law faculty recently reminded us: "[T]he founding generation showed concern for how adjudication in our courts would affect other countries' regard for the United States."

John Jay, one of the authors of The Federalist Papers promoting ratification of the U.S. Constitution, and George Washington's appointee as first Chief Justice of the United States, wrote of the new nation in 1793 much as Justice O'Regan did in 2004 of the new Republic. The United States, Jay observed, "by taking a place among the nations of the earth, bec[a]me amenable to the laws of nations," the core of what we today call international law. Eleven years later, the great Chief Justice John Marshall cautioned: "[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains."

True, there are generations-old and still persistent discordant views on recourse to the "Opinions of Mankind." A mid-19th century U.S. Chief Justice expressed opposition to such recourse in an extreme statement. He wrote:

No one, we presume, supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce the [U.S. Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.

Those words were penned in 1857. They appear in Chief Justice Roger Taney's opinion for a divided Court in Dred Scott v. Sandford, an infamous opinion that invoked the majestic Due Process Clause to uphold one human's right to hold another in bondage. The Dred Scott decision declared that no "descendants of Africans [imported into the United States], and sold as slaves" could ever become citizens of the United States.

While the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution reversed the Dred Scott judgment, U.S. jurists and political actors today divide sharply on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights. Some have expressed spirited opposition. Justice Scalia counsels: The Court "should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."

Another trenchant critic, Seventh Circuit U.S. Court of Appeals Judge Richard Posner, commented not long ago: "To cite foreign law as authority is to flirt with the discredited . . . idea of a universal natural law; or to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience." Judge Posner's view rests, in part, on the concern that U.S. judges do not comprehend the social, historical, political, and institutional background from which foreign opinions emerge. Nor do we even understand the language in which laws and judgments, outside the common law realm, are written.

Judge Posner is right, of course, to this extent: Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey.

Many current members of the U.S. Congress would terminate all debate over whether federal courts should refer to foreign or international legal materials. For the most part, they would respond to the question with a resounding "No." Two identical Resolutions reintroduced last year, one in the House of Representatives and the other in the Senate, declare that "judicial interpretations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such [materials] inform an understanding of the original meaning of the Constitution." As of December 2005, the House Resolution had attracted support from 83 cosponsors. Two 2005-proposed Acts would do more than "resolve." They would positively prohibit federal courts, when interpreting the U.S. Constitution, from referring to "any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the [U.S.] Constitution." [Even reference to a Scottish verdict, i.e., a verdict of not proved, it seems, would be out of order.]

These measures recycle similar resolutions and bills proposed before the 2004 elections in the United States, but never put to a vote. Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support. And one not-so-small concern - they fuel the irrational fringe.

The U.S. Constitution, Justice Scalia has remarked, contains no instruction resembling South Africa's Section 39 prescription. So U.S. courts, he thinks, have no warrant from our fundamental instrument of government to consider foreign law. I would demur to that observation. Judges in the United States are free to consult all manner of commentary - Restatements, Treatises, what law professors or even law students write copiously in law reviews, for example. If we can consult those writings, why not the analysis of a question similar to the one we confront contained in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?

The notion that it is improper to look beyond the borders of the United States in grappling with hard questions, as my quotation from Chief Justice Taney suggested, is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U.S. jurists honor the Framers' intent "to create a more perfect Union," I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.

On the question of dynamic versus static, frozen-in-time constitutional interpretation, the Court's Lawrence v. Texas opinion instructs:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

To conclude my account of recent decisions in which the U.S. Supreme Court cast comparative sideglances, the March 2005 decision in Roper v. Simmons presents perhaps the fullest expressions to date on the propriety and utility of looking to "the opinions of [human]kind." Holding unconstitutional the execution of persons under the age of 18 when they committed capital crimes, the Court declared it fitting to acknowledge "the overwhelming weight of international opinion against the juvenile death penalty." Justice Kennedy wrote for the Court that the opinion of the world community provides "respected and significant confirmation of our own conclusions." "It does not lessen our fidelity to the Constitution," he explained, to recognize "the express affirmation of certain fundamental rights by other nations and peoples." (Among the dozens of amici curiae submissions in Roper, an impressive brief bears the names of several Nobel Peace Prize winners, including former U.S. President Jimmy Carter, South Africa's former President Willem de Klerk, and Archbishop Desmond Tutu. The Nobel laureates urged the Court to "consider the opinion of the international community, which has rejected the death penalty for child offenders worldwide.")

[Justice O'Connor, although she dissented from the Court's categorical ruling in Roper, agreed with the Court on the relevance of "foreign and international law to [an] assessment of evolving standards of decency." The other dissenters, for whom Justice Scalia spoke, vigorously contended that foreign and international law have no place in determining what punishments are "cruel and unusual" within the meaning of the U.S. Constitution's Eighth Amendment.]

Recognizing that forecasts are risky, I nonetheless believe the U.S. Supreme Court will continue to accord "a decent Respect to the Opinions of [Human]kind" as a matter of comity and in a spirit of humility. Comity, because projects vital to our well being - combating international terrorism is a prime example - require trust and cooperation of nations the world over. And humility because, in Justice O'Connor's words: "Other legal systems continue to innovate, to experiment, and to find new solutions to the new legal problems that arise each day, from which we can learn and benefit."

In this regard, I was impressed by an observation made in September 2003 by Israel's Chief Justice Aharon Barak. September 11, he noted, confronts the United States with the dilemma of conducting a war on terrorism without sacrificing the nation's most cherished values, including our respect for human dignity. "We in Israel," Barak said, "have our September 11, and September 12 and so on." He spoke of his own Court's efforts to balance the government's no doubt compelling need to secure the safety of the State and of its citizens on the one hand, and the nation's high regard for "human dignity and freedom on the other hand." He referred, particularly, to a question presented to his Court: "Is it lawful to use violence (less euphemistically, torture) in interrogat[ing] [a] terrorist in a 'ticking bomb' situation." His Court's answer: No, "[n]ever use violence." He elaborated:

[It] is the fate of a democracy [that] not all means are acceptable to it, . . . not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of [a democracy's] understanding of security. At the end of the day, [those values buoy up] its spirit and strength [and its capacity to] overcome [the] difficulties.

In that opinion, I concur without reservation.

I really must hattip the blogger Republic of Palau for pointing the way to that speech. Guambat was ever going to look to see what a neighbouring Micronesian would have to say.