Judges and Judiciary
Mar. 16, 2005
Citing Foreign Law Sparks Unnecessary Bruhaha
Forum Column - By Erwin Chemerinsky - Perhaps the silliest debate now going on is whether it is appropriate for American courts to cite to foreign law materials in constitutional cases.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Forum Column
By Erwin Chemerinsky
Perhaps the silliest debate now going on is whether it is appropriate for American courts to cite to foreign law materials in constitutional cases.
U.S. Rep. Tom Feeney, R-Fla., has repeatedly introduced resolutions into Congress condemning the use of foreign law in federal court opinions. For example, on Feb. 15 he introduced HR 97, which expressed "the sense of the House of Representatives that judicial determinations regarding the meaning of the Constitution should not be based on judgments, laws or pronouncements of foreign institutions unless such foreign judgments, laws or pronouncements inform an understanding of the original meaning of the Constitution of the United States."
Feeney's resolution is misguided, in part, because he is attacking a practice that does not exist. No Supreme Court decision ever has been "based" on the judgments, laws or pronouncements of foreign countries. At times, American courts may refer to foreign practices in their opinions. But there is not one example of any federal court basing a constitutional decision on foreign law.
Feeney, though, is not alone in criticizing the mention of foreign law in American constitutional law opinions. Justice Antonin Scalia recently expressed the same view in his dissent in Roper v. Simmons, 125 S.Ct. 1183 (2005), and he sharply criticized the majority's mention that few countries in the world execute people for crimes committed as juveniles. In January, Scalia expressed the same view in a widely publicized a televised exchange on C-Span with Justice Stephen Breyer over whether foreign law materials should appear in American opinions.
What is this debate really about and why is it so misguided? There is no doubt that it is motivated by conservative dislike for some cases in which the Supreme Court has cited to foreign law in recent years. For example, in Atkins v. Virginia, 536 U.S. 304 (2002), Justice Stevens' majority opinion pointed to opinion and practices throughout the world in explaining why the execution of mentally retarded individuals is cruel and unusual punishment.
In Lawrence v. Texas, 539 U.S. 558 (2003), the court described the law in Europe in explaining why privacy protects a right to engage in private consensual homosexual activity. Justice Anthony Kennedy's majority opinion mentioned a decision of the European Court of Human Rights and the fact that in all 46 nations in the Council of Europe there is protection for private consensual homosexual activity.
Most recently, in last month's Roper v. Simmons, the court in declaring unconstitutional the death penalty for crimes committed by juveniles pointed to almost universal condemnation across the globe for such executions. Kennedy's opinion for the court explained: "[O]nly 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. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty."
But Kennedy was clear that the court's decision was not "based" on foreign practices. He wrote: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."
Kennedy's opinion in Roper inspired Feeney to reintroduce his resolution and will further fuel the debate over courts invoking foreign practices. For many reasons, there is no basis for opposing using foreign law in American decisions concerning constitutional law.
First, the Supreme Court repeatedly has held that some constitutional provisions are to be interpreted based on "evolving standards of decency." For example, the court has said that what constitutes cruel and unusual punishment is not fixed, but is determined by such changing standards. See, e.g., Woodson v. North Carolina, 428 U.S. 280 (1978), (invalidating a mandatory death penalty on the grounds that it violated evolving standards of decency).
Standards of decency certainly can be informed by world practice and opinion. Quite appropriately, the court canvassed the law of foreign nations in concluding that the death penalty for the mentally retarded or for crimes committed as juveniles violates the Eighth Amendment. It is telling that no other country in the world any longer supports capital punishment for crimes committed by minors.
Second, the United States certainly can learn from foreign experiences. In fact, liberals as well as conservatives have invoked foreign experiences to support their conclusions. For instance, in Washington v. Glucksberg, 521 U.S. 702 (1997), Chief Justice William Rehnquist's opinion for the court discussed the experience in the Netherlands with regard to physician-assisted suicide and pointed to it as a reason against recognizing such a right in the United States.
To say that American courts cannot look to foreign law or foreign experience is to say that ignorance is better than knowledge. Surely there are instances in which the United States can benefit from examining what other countries have done. Most nations, especially most industrialized nations, are facing the same problems and obviously can learn from one another.
The absurdity of the Feeney resolution is that it would prevent American courts from citing to the Bible or to English common law. Courts should glean wisdom and insights from any sources available. There is no imaginable reason for limiting this to American sources.
Of course, foreign law and practices might be more relevant in some areas than others. It may be particularly helpful in areas where decisions are expressly based on norms such as "evolving standards of decency" and not relevant at all in areas where American law is a product of its distinctive history and culture.
For example, many countries do not seek to separate church and state and have no provision akin to the Establishment Clause found in the First Amendment. Likewise, the experience of other nations with regard to racial discrimination may be of little value in light of America's tragic history of slavery, government mandated segregation and widespread discrimination.
Congress, of course, cannot limit what federal courts can cite to in their decisions. Any attempt by Congress to tell federal judges how to write their opinions unquestionably would be declared unconstitutional as violating separation of powers. The real threat of the Feeney amendment is not its chances of being passed and implemented. Rather, its importance is as an attempt to change the political debate and persuade courts not to look to foreign practices.
Feeney and justices such as Scalia see a world where many nations have governments that are more progressive than ours. They worry that courts will justify liberal rulings by pointing to foreign practices. Thus, a handful of Supreme Court citations to foreign practices has produced a firestorm of protest.
Perhaps the greatest irony is that the very conservatives who push to eliminate citations to foreign law in American opinions are also the individuals who want the courts to follow the original intent of the Constitution's framers. It is inconceivable that the framers, who relied so heavily on English law, would have supported a resolution like Feeney's. The framers knew that knowledge and insights are to be gained from many sources, all over the world.
Courts should simply ignore the Feeney resolution and decide cases with consideration of all available materials, including those from foreign countries. The sum of human wisdom and experience is not to be found solely within American borders. Where appropriate, foreign law and foreign practices can improve constitutional decisions.
Erwin Chemerinsky is Alston & Bird Professor of Law, Duke University School of Law.
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