The following is an article I wrote in February of 2005 about a debate on foreign law influences upon the American legal system between originalist Justice Antonin Scalia and activist Justice Stephen Breyer. I hope you find it illuminating.
WHO WILL SPEAK FOR YOU?
By Edward L. Daley
A few weeks ago I was watching a program on C-Span pertaining to the impact of foreign court opinions upon the U.S. justice system. The primary participants in the discussion were Supreme Court Justices Antonin Scalia and Stephen Breyer, and the event took place at the American University Law School in Washington D.C.
The debate revolved around questions asked by a moderator named Professor Norman Dorsen, and the first multi-part question asked was, “When we talk about the use of foreign court decisions in U.S. Constitutional cases, what body of foreign law are we talking about? Are we limiting this to foreign constitutional law? What about cases involving international law, such as the interpretation of treaties, including treaties to which the U.S. is a party? When we talk about the use of foreign court decisions in U.S. law, do we mean them to be authority, or persuasive, or rhetorical? If, for example, foreign court decisions are not understood to be precedent in U.S. Constitutional cases, are they nevertheless able to strengthen the sense that U.S. law assures a common moral and legal framework with the rest of the world? If this is so, is that in order to strengthen the legitimacy of a decision within the U.S., or to strengthen a decision’s legitimacy in the rest of the world?”
Some question, huh? I don’t think I’d be comfortable trying to answer it all in one fell swoop, and apparently neither did the two justices. Justice Scalia began his reply by stating that most of the parts of it should be posed to Justice Breyer, simply because Scalia does not use foreign law in the interpretation of the U.S. Constitution.
He stated that he will use it when interpreting a treaty, because treaties are based upon a mutual understanding of the law by the signatories thereof. That seemed like a no-brainer to me, and the point was not argued by Breyer.
Scalia went on to say that, aside from that, he refuses to use foreign decisions in Constitutional law. He argued that some justices refer to foreign law because they want to feel assured that we have the same “moral and legal framework as the rest of the world.” He then pointed out, quite matter-of-factly, that we don’t have the same moral and legal framework, and we never have.
He continued by referring to the Federalist Papers, saying that they are full of statements which make it clear that our founding fathers had little respect for the laws of European countries in that day and age, citing a passage by James Madison to that effect. He then asked the rhetorical question, should we be willing to change our laws based upon the fact that many of them are not in step with the vast majority of foreign law decisions, mentioning the issues of abortion on demand, and the exclusionary rule relative to ‘Miranda’ as examples.
He went on to ask the question, why haven’t we changed these laws if the court feels we should use foreign law… or do we just use foreign law selectively, whenever it agrees with what an individual justice would like a particular case to say? He then asked what the criterion is for citing foreign law, if doing so is not meant to be authoritative.
Justice Breyer responded by saying, among other things, that law emerges from conversations among law practitioners, law students, and academics. He recounted an event at which he was first confronted with the question of whether or not foreign law decisions should be considered by U.S. courts. He described a past seminar he’d attended with various judges and law makers wherein a Congressman had remarked that he thought it was a terrible idea to use foreign law in U.S. court decisions.
Breyer reflected that he’d told the Congressman “Of course foreign law doesn’t bind us in Constitutional law. Of course not.” But, he added, these [foreign justices] are human beings who often have problems which are similar to our own.
He mentioned that the societies about which these foreign decisions are concerned, are becoming more and more democratic, and that in a case which is similar to one he might face as a Supreme Court Justice, “why don’t I read what he says, if it’s similar enough?” Apparently the Congressman he was speaking to at the time said fine, go ahead and read it, just don’t cite it in your legal opinion.
Breyer’s response to this remark had been that since foreign courts cite our Supreme Court’s findings in their decisions, he didn’t see anything wrong with citing theirs in his. He added that by doing so, we might actually lend credibility to their laws, or as he put it, “give them a leg up.” The Congressman’s response was that Justice Breyer should simply write them a letter of approval instead, if he felt that way.
At that point, Breyer seemed to stall, relating that the Congressman had “made a point,” and then failing to explain why he felt that position wasn’t essentially correct. He went on to refer to Justice Scalia’s implication that we do not understand enough about any particular foreign decision to cite it responsibly, asking, “how do we know we cite both sides” of an argument in foreign law cases? “How do we know we look for everything?” His answer to both of those questions was that such problems arise in every sort of citation. “A judge can do what he’s supposed to do, or not,” he continued, “and we hope they do what they’re supposed to do.”
This is where he lost me, and, apparently, where he lost Justice Scalia as well. After all, the fact that American justices face decisions without looking at every possible viewpoint available in the written law, has nothing to do with the fact that foreign law systems are often completely alien to our own. It’s not a question of whether or not we are able to see every bit of available information, but rather that the systems by which other countries arrive at legal decisions are usually not very similar to ours. Also, as Scalia pointed out, other legal systems may only have adopted part of a law that has originated in the U.S. (e.g. Miranda), and ignored other parts (e.g. the exclusionary rule) that are just as important to the fundamental principle underlying that law.
I found it interesting that Justice Breyer first announced that foreign law is “of course” not binding in Constitutional law, yet followed up that point by giving reasons, ostensibly, why it should be.
Justice Scalia seemed just as confused as I was by certain points that Breyer had made, beginning his retort by declaring, “I don’t know what it means to express confidence that judges will do what they ought to do, after having read the foreign law. My problem is that I don’t know what they ought to do. What is it that they ought to do? You have to ask yourselves, why is it that foreign law would be relevant to what an American judge does when he interprets – INTERPRETS – not writes [the law]… it [foreign law] is very useful in devising a Constitution, but why is it useful in interpreting one?”
Scalia then explained his basic theory as it relates to the interpretation of the Constitution, saying that he tries to understand what it means, and what society understood it to mean when it was adopted, adding that his philosophy used to be orthodoxy prior to the 1940s. He stated that foreign law is irrelevant to anyone who embraces that philosophy, with the exception of old English law, because of the fact that many of our legal definitions were taken from that to begin with.
He went on to relate two other approaches to interpreting the Constitution. The first, he explained, was the notion that the Constitution doesn’t mean what it meant when it was first ratified, but that it changes from era to era to conform to, as Scalia then quoted, “the evolving standards of decency that mark the progress of a maturing society.” – Troy v. Dulles, 356 U.S. 86, 101
At that point he mentioned that he detests that phrase, arguing that societies don’t necessarily mature, and that “sometimes they rot.” However, he opined, even if you buy into that theory, you are still primarily concerned with the standards of decency of Americans, not foreigners, and that the only way a person would ever be willing to accept the standards of other countries as being applicable to our standards, is if that individual espoused a third way of interpreting the Constitution.
That third philosophical approach, Scalia continued, says “I am not looking for the evolving standards of decency of American society, I’m looking for what is the best answer in my mind, as an intelligent judge. And for that purpose, I look to other intelligent people, and I talk sometimes about conversations with judges, and lawyers, and law students. Do you [the law students in the audience] think you’re representative of American society? Do you not realize you are a small, cream at the top, and that your views on innumerable things are not the views of America at large? And doesn’t it seem somewhat arrogant of you to say I can make up what the moral values of America should be on all sorts of issues?”
The whole time he was saying this, Breyer looked as if he’d just swallowed a prune pit, since he clearly understood (as did I, and probably everyone else watching) that Scalia had just implied he was arrogant. Once Justice Scalia had concluded by saying that he did not wish to undertake the responsibility of deciding what is moral and what isn’t for all of society, Justice Breyer commented, “I think that’s pretty good.”
“It’s really because I think, and I think many judges think, that your own moral views are not the answer, that people look other places for trying to find out – how to find answers,” he added. Yet once again his statement didn’t have any bearing upon the issue raised. The question isn’t whether one should look for answers as to what may be the morally right thing to do, but rather, where it is they’re looking!
Breyer pointed out that there is “nothing in ‘Blackstone,’ ‘Bracton’ or even ‘King Arthur,’ that says that cruel and unusual punishment – to determine that – you cannot look, except to England, or except to the United States… So, there’s nothing barring me.” This statement is a dead giveaway that Breyer believes it is reasonable to define morality in America based upon what other countries think, or upon what members of the legal profession think. Does it really need to be written that American moral issues should be decided by the American citizenry? Isn’t that just plain common sense?
Apparently Justice Breyer doesn’t think so. Even though he goes to the trouble of saying once again that he doesn’t look to himself to determine the answers to moral questions within the law, the undercurrent running throughout his remarks is that he’s willing to let someone other than the American people make the call.
“But I’m thinking, Well, on this kind of an issue you’re asking a human question, and the Americans are human – and so is everybody else,” Breyer states, “and I don’t know, it doesn’t determine it, but it’s an effort to reach out beyond myself to see how other people have done… So I’d have to say I’d rather have the uncertainties and I’d rather have the judge understanding that he’s looking but it’s not controlling. And I’d rather have him use it with care, hoping that the judges won’t lack the control to do so. Then I would like to have an absolute rule that says legally never. And the fact that I cannot find such an absolute rule – legally never – even in King Arthur – gives me some cause for hope.”
Hope? Hope of what?
Justice Scalia carried on the conversation by repeating the points he’d made before, discussing in greater detail certain cases in support of his argument, and stating that “One of the difficulties of using foreign law is that you don’t understand what the surrounding jurisprudence is, so that you can say, you know, Russia follows Miranda, but you don’t know that Russia doesn’t have an exclusionary rule.”
He said that it was unfair to compare American death penalty cases, and the issue of whether it is cruel and inhuman for someone to wait a dozen years before being executed, to similar foreign cases. His basic point was that foreign and American cases were not comparable because of the enormous differences in the way each system deals with the death penalty to begin with. The question of what might be considered cruel and unusual in one country would not apply to another for that reason, and, therefore, would be rendered irrelevant.
This argument seemed to be completely lost on Breyer, as was evidenced by the fact that he responded with the following statement: “Well, it’s relevant in the sense that you have a person who’s a judge, who has similar training, who’s trying to, let’s say, apply a similar document, something like cruel and unusual or – there are different words, but they come to roughly the same thing – who has a society that’s somewhat structured like ours.”
At that point Justice Scalia wisely decided to ask the moderator for a new question, and the professor’s response was to say that, “Although you have suggested your view about this, I’m still unclear about what the harm or risk is of considering foreign sources that may bear on problems that are common to both countries. For example, you mentioned the – both of you have mentioned the death penalty. Why shouldn’t U.S. constitutional decisions take account of shifting world standards on such things as the death penalty, on the execution of juveniles, on the execution of the mentally ill? Are we that far from the rest of the world in terms of the way life is lived?”
The first thing I thought after hearing this was WHAT AN IDIOT! However, even though I suspect that Scalia was thinking the same thing, he showed enough restraint to continue the conversation without becoming insulting to his host, and eventually related that in his dissenting opinion regarding a homosexual sodomy case, he’d pointed out that the court had cited only European law. “Of course,” remarked Scalia, “they [the Europeans] said it not by some democratic ballot, but by decree of the European Court of Human Rights, who was, you know, using the same theory that we lawyers and judges and law students – we know what’s moral and what isn’t.”
Breyer attempted to water down the argument, by infusing some mundane legal point into the mix, but the issue’s course was quickly corrected by Scalia when he related that, “it [the matter of selectively citing foreign decisions] lends itself to manipulation. It lends itself – It invites manipulation.” His subsequent remarks on that score were nothing short of eloquent, and were masterfully reproachful of Justice Breyer’s opinion without actually being too insulting to the man personally.
Justice Breyer was quick to change the subject, saying, “Can I go into a different topic? Because I – it’s slightly – it’s still international application. But I’m curious what my colleague thinks of this because I actually do believe, which I’ve said several times, that this is really a very dramatic issue and so forth, but it isn’t really the important issue to me.”
Of course it wasn’t the important issue to him at that point in the conversation. He’d just had his head handed to him, figuratively speaking, and was obviously perplexed as to how he could continue to address Scalia’s line of reasoning without either agreeing with him, or looking like a jackass.
Be that as it may, he then went on to talk about a few cases which were, as he put it, “much less glamorous,” rounding out his comments by asserting, “this world we live in is a world where I think it’s out of date for people to teach about foreign law in a course called ‘foreign law.’ I think it’s in date to teach in contract law or in tort law, because those are the cases we’re getting.”
I must admit that in certain cases relative to contract law, where companies deal with one another internationally, there are foreign law principles which may well permeate the meat of the matter. But the supposition that the more important and far-reaching moral arguments before the U.S. Supreme Court, pertaining to American societal norms and conventions, should necessarily be dependent upon the whims of foreign law decision-makers, merely because such is the case in the aforementioned respects, is ridiculous on its face. But then, that’s just my opinion.
Later on, Mr. Dorsen queried, “The question I have in my own mind is whether this question is a naive question. And that is, rather than looking at foreign courts to say Greece decided our way, the United Kingdom decided our way, X country decided a different way, another country has a different view, rather than thinking about these courts and cases in terms of the results to think about them in terms of the persuasiveness of the opinions, just as a New York court might look at a Montana decision and be influenced not by the result of the Montana court or the Wyoming court or the Illinois court but by the cogency of the arguments, by the depth of the reasoning, by the logic.”
To which Justice Scalia responded, “Well, you’re begging the question. I mean, your question assumes that it is up to the judge to find THE correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that’s what it says, that’s what it says.”
Ask yourself why Antonin Scalia would say such a thing. If you understand the role of a judge in the American system of government, the answer should be obvious. It’s not his job to write the law, only to interpret it. Writing law is the job of the legislative and executive branches. Even if he disagrees with the law he’s considering, he has no lawful authority to change it, nor should it be his desire to do so. You see, Judge Scalia understands the fundamental principle behind the words “separation of powers,” and he actually practices what he preaches.
Furthermore, he proves his allegiance to the Constitution, and to the American people when he contends, “And on these Constitutional questions, you’re not going to come up with a right or wrong answer; most of them involve moral sentiments. You can have arguments on one side and on the other, but what you have to ask yourself is what does American society think?” Although the discussion continued for nearly another half hour, nothing was said by anyone present which was more profound than that, so I won’t bother reiterating further.
Suffice it to say that if I were a Supreme Court Justice, I’d ask myself the following questions:
Do judges in the U.S., at any level of jurisprudence, consider the Constitution to be satisfactory or not?
If not, what other nation has exhibited the capacity to improve upon it, or even to approach its standards of excellence in such a way as to be worthy of my consideration of its views?
Should justices of the highest court in the land be allowed to speak for the attitudes of the American people, while simultaneously ignoring them, respectful only of the opinions of elitists from other countries, and/or the American legal intelligencia?
In short, do we really want these people making moral judgments for the rest of us?
I may not be a law professor, an attorney, a judge, or even a formal student of the practice, but it seems to me that the law should be based, at least in part, on common sense and practicality. It should also be reflective of the will of the American people, if it is to have any true weight at all.
As Ulysses S. Grant once said, “The will of the people is the best law.”