Monday, November 21, 2005

Foreign Caselaw in the Supreme Court

In hisprepared remarks Al Gonzales is concerned. He says "we must protect at all costs . . . the American dream . . . written into the fabric of out Nation through the Constitution." What is this threat to the American dream? The Supreme Court citing foreign legal cases. That and the gays, of course.
Certain members of the Supreme Court appear today to be . . . consider[ing] evolving, contemporary legal judgments and policy preferences of other nations. It appears to reflect a view that such foreign legal judgments and policy preferences are somehow relevant in defining the terms and limits of our Constitution.

The legal judgments and preferences of other nations are "somehow relevant" to applying the Constitution because all nations deal with similar human struggles. Americans are not genetically abnormal. Ideas of fairness, justice, and freedom are usually understood to apply universally without respect to geographic location. To suggest otherwise -- that justice or immoral conduct depends upon location or culture -- is to support relativism. I note the irony that conservatives often attack their opponents as relativists and claim Truth is not relative. If truths are not relative, looking to other cultures institutions for guidance should be natural and appropriate.

[T]he growing tendency by some members of the Court to look to precedents from overseas in construing the Constitution has a direct impact on [the Department of Justice's] work.

I believe Gonzales gets the issue wrong on a basic level. He say the Court is looking to overseas cases in construing the Constitution. The Court does not look to foreign cases to construe the Constitution, rather they look to foreign cases as a source of thoughtful decisionmaking, and possibly as helpful in applying the policies outlined in the Constitution. It is important to distinguish between construing the constitution and applying a doctrine based on that construction.

Applying the Constitution requires the application of facts and logic. For example, the Constitution says that no State shall "deny to any person within its jurisdiction the equal protection of the laws." What "equal protection" is depends upon how we factually understand the world around us. At the time of the passage of the Fourteenth Amendment women were widly considered (by men) less intelligent and capable in many ways than men. Laws that restricted women from managing property or becoming members of the bar might not be unconstitutional under this archic belief system because treating women differently would be completely rational and appropriate. However, this view was incorrect. Knowing what we do today, discriminating based upon gender in these ways is abhorrent. The Constitution did not change, but our application of the Constitution changed depending upon the facts as we know them.

Foreign case law can assist in applying the basic principals of the constitution because other courts have faced similar problems in deciding what fundamental right human beings have; similar issues of contested facts have been presented; or similar policy issues must be balanced. Just as the Court can look to lower court decisions and law review articles, looking to foreign cases allows for another perspective on a difficult issue. Why should the Court be excluded from reading (and pointing to in its opinions) foreign opinions when it can cite to any third rate law professor without any controversy?

Gonzales:
I think it trivializes constitutional inquiry if we cite foreign sources to provide additional support for a conclusion that we already were going to reach based on more traditional sources.
He appears to believe a the result in a case flows directly from "sources," leaving out the fact that applying a general principal of law in a particular case takes facts and logical reasoning. Whether executing juveniles is cruel depends may depend upon our understanding of brain development and the probable effects of such a law (execution would be less "cruel" if it acted as a strong deterrent to crime). All nations -- save the US -- had banned the execution of those convicted as juveniles; looking to the reasons and facts that supported those decisions is important. These foreign opinions can be considered traditional sources under a different title.

This ties into the basic questions of how the Constitution should be interpreted. If you are a certain type of originalist, which I will call a strong-originalist, the Equal Protection Clause could not be used to strike down laws barring them from becoming lawyers or laws that give exclusive control of a wife's property to the husband. Nor could the Constitution have required desegregation of schools. At the time of the passage of the Fourteenth Amendment the authors and the public enacting the law never expected it would overturn these practices. Looking to the expectations of the framers and the public, a large amount of discrimination based on race and gender is acceptable under the Fourteenth Amendment.

This form of originalism is supported only when it doesn't embarrass the proponent. Originalists don't like to argue Brown v. Board of Education was decided incorrectly because it makes them look like racist assholes, but they might not be afraid to condemn homosexuals as unprotected by the Constitution based on the 1850's understanding that homosexuality is immoral (because they don't mind looking like anti-homosexual bigots). And they don't mind applying strong-originalism to the scope of the Commerce Clause. And to add to the hypocrisy, they often claim affirmative action programs are unconstitutional, when they would clearly be allowed under an originalist understanding.

Some more,
Frankly, I don’t know how we begin to identify the relevant universe of foreign sources and precedents that might be deemed persuasive by one or more Justices.
"Whaaaa! Its really hard work to look at foreign law!"
My point is simply that relying on foreign law to interpret our Constitution appears to create more problems than solutions.
My point is that the Court does not rely on foreign law.

Mostly, the argument against citing foreign law is just hyperbole meant to fire up the judge-hating, ten-commandments crowd:
Those who seek to enshrine foreign and international law in our Constitution through the courts...
Who are "those" I wonder. Nobody I have ever read about.

2 comments:

Antares said...

Sorry to play devil's advocate--you know we agree on most of these issues--but you're really overlooking an important point: when you, and Mr. Gonzalez, refer to "foreign courts," you're really talking about a specific subset of them: European courts. This is where both of your arguments break down.

You admit that the constitution is itself vague, and that what really matters is the interpretation of it. Then you go on to admit that within our own country, social changes over time have affected how we interpret the constitution. In other words, you've shown that the understanding of constitutional law is largely relative to the social lens you're viewing it through. This is, so far, exactly what Alberto Gonzalez was trying to say.

The difference is that Gonzalez is going too far in the direction of assuming that the foreign societies in question are different, and you are somewhat disingenuously postulating a universal social understanding of human rights. I say "disingenously" because, in order to argue that, you'd have to somehow dismiss many other cultures that have radically different ideas of "human rights," and may be far more accepting of harsh punishments than the US is. Does China agree with us on human rights? Does Iran? How about Pakistan, Zimbabwe, or Rwanda? *

"All nations -- save the US -- had banned the execution of those convicted as juvenilles"

Are you sure about that? All nations?

In any case, my opinion is that Al. Gonzalez is correct when he implies that decisions in foreign courts are influenced by--and reflective of--their societal views, which _could_ be different from ours. Wouldn't you be pretty upset if the Supreme Court started using court decisions from countries that disagree with the US on human rights issues (like China, or rural Pakistan) to help interpret what something like "equal protection" means in the US Constitution?

Where Gonzalez's argument breaks down is that the Supreme court is specifically looking at court decisions from similar societies. That fact immediately undermines his argument. The US Supreme Court is not stupid, and would never look to an extremely dissimilar society for guidance on these issues.

* (I think we should be careful before we simply dismiss all these cultures as having "incorrect" views on human rights simply because they are different from our own. I'm not supporting moral relativism here, but things aren't exactly black-and-white either. The concept of absolute moral truth is essentially faith-based. After all, what else decides moral truth? Logical deduction from universal principles? If someone's value system is logically inconsistent, does that make it invalid? What if it is logicaly consistent, but different from yours because someone disagrees with you on one or more of the universal principles you've used to deduce your value system? This is a complete tangent.)

c&d said...

From Roper, http://www.law.cornell.edu/supct/html/03-633.ZO.html

"Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.

"Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed

"Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice."

you're really talking about a specific subset of them: European courts.
I don't think we are. It is likely that we are talking about nations that are liberal democracies that have a strong judiciary and apply the rule of law. De facto, this means mostly European courts.

you are somewhat disingenuously postulating a universal social understanding of human rights.
You are right, that I probably overstate my case, but I don't postulate a universal social understanding of human rights or anything else. We don't need to have the same culture as Germans or Rwandans to learn from the genocides that occurred in each nation. In terms of the usefulness of foreign law, it need only be shown that other nation's experiences are useful, not perfectly analogous. Gonzales challenges that foreign experience is not "somehow relevant." He is making a very strong (and, I say, untenable) statement. I, and the justices that cite foreign law, are not arguing for deference to foreign law, but that foreign law -- like many other things outside of prior legal opinions -- is relevant to deciding a case.

Wouldn't you be pretty upset if the Supreme Court started using court decisions from countries . . . like China, or rural Pakistan . . . to help interpret what something like "equal protection" means China's system does not respect the rule of law or have the goal of promoting democracy, freedom or equality. I doubt the Supreme Court would pay too much attention to a Chinese case simply because an opinion based on undemocratic political pressure is unlikely to be useful. Even so, a Chinese or Pakistani court could have something useful to say about equality.

I repeat myself, but so be it: Citing to foreign law is not relying on foreign law, or basing a decision on foreign law. I think it is more akin to citing a sociological study. Any given study could be flawed or unhelpful and Albert Gonzales might think its hard to look through all the studies available, but the study does not define the Constitution.

W/r/t moral relativism and such: I agree this is a sticky wicket. I brought up the issue only to note the irony of those who believe there is a Truth, but also believe there is an American Truth.