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Would kind of put 'moot' on ICC, I'm in favor of it.[Jonathan Adler, November 17, 2007 at 9:46am] Trackbacks
A Constitutional Amendment on Foreign Law:
The morning plenary panel at the Federalist Society's annual lawyers' convention concerns "he Constitution & American Exceptionalism: Citation of Foreign Law." First up is Georgetown University law professor Nicholas Rosencranz who lays out the basic case against relying upon foreign or international law in constitutional interpretation. Rosencranz makes several points (and my summary us unlikely to do justice to his remarks). The Constitution, he notes, draws its legitimacy from the consent of the governed and the American Revolution was motivated, in part, in opposition to the imposition of foreign rule on the colonies. Thus it would be quite incongruous for the meaning of the Constitution to be dependent upon the decisions and views of foreign governments or international institutions, rather than the considered views of the American people. Changing the meaning of the Constitution, Rosencranz notes, is to be done through constitutional amendment, not the changing conceptions of justice embraced by foreign governments and international organizations.
The most interesting part of Rosencranz's remarks is a proposal for a constitutional amendment declaring that foreign and international law should not be relied upn to interpret or construe the U.S. Constitution. At one level this is quite a radical proposal perhaps killing a gnat with an elephant gun, Rosencranz acknowledges but Rosencranz offers a few reasons why such an Amendment would be quite in line with the American experience. First, Rosencranz notes, there is precedent for amending the constitution with rules of constitutional construction. Both the 9th and 11th Amendment are, by their own terms, rules of interpretation, explaining that the Constitution should not be interpreted in a particular fashion. Further, Rosencranz observes, both Amendments stated interpretive rules that (at least many of) the Founders believed should have gone without saying. They reaffirmed the prevailing understanding of the constitutional text more than they amended it (though the 11th Amendment also overturned a Supreme Court opinion adopting a contrary view). There should be little doubt, in Rosencranz's view, that the Founders would have also disapproved of relying upon foreign law in constitutional interpretation. So such an amendment would help reinforce, or perhaps restore, an original understanding of the Constitution, and reinforce the idea that the American Constitution as the ultimate expression of the will of the American people.
Now I don't for a minute expect such an amendment to pass nor, do I suspect, does Professor Rosencranz. Yet if reliance upon foreign and international law in constitutional interpretation is wrong, as Rosencranz argues, there is nothing particularly incongruous about saying so in the Constitution. His is an interesting proposal that may help inform discussion and debate over the role of foreign law in constitutional interpretation.
Is that in the Constitution? Interesting post:
http://volokh.com/archives/archive_2007_11_11-2007_11_17.shtml#1195310819
Would kind of put 'moot' on ICC, I'm in favor of it.
this seemed a rather obvious observation as to why laws outside the us should not be considered....
"The Constitution, he notes, draws its legitimacy from the consent of the governed and the American Revolution was motivated, in part, in opposition to the imposition of foreign rule on the colonies. Thus it would be quite incongruous for the meaning of the Constitution to be dependent upon the decisions and views of foreign governments or international institutions, rather than the considered views of the American people."
i will have to remember this for my next liberal dinner party.....
Yeah, my kind of reasoning. When in doubt between feds and states; states. When in doubt between US and 'world'; US.
Isn't this more American Nativism dressed up in intellectual robes?
Isn't this more American Nativism dressed up in intellectual robes?
Isn't this more American Nativism dressed up in intellectual robes?
ways, morals and manners of traditional America..
I think the objection is to Supreme Court justices and clerks citing to foreign law in their decisions. It's pretty rank, and almost always done to advance a liberal agenda.*
An amendment would not stop the bad stuff, though: justices would just come to their desired result and stay quiet about their inspiration. Roe v. Wade, Brown v. Board and all the other disasters didn't need the help of Belgian law... just plain ol' liberal nonsense.
WHAT WE REALLY NEED are Supreme Court justices who respect the American Constitution and the ways, morals and manners of traditional America.
*Or meddling with neocon goals, which Jews Volokh and Adler are keen to see happen.
Now I don't for a minute expect such an amendment to pass nor, do I suspect, does Professor Rosencranz. Yet if reliance upon foreign and international law in constitutional interpretation is wrong, as Rosencranz argues, there is nothing particularly incongruous about saying so in the Constitution. His is an interesting proposal that may help inform discussion and debate over the role of foreign law in constitutional interpretation.
does austraila look to new zeland or bali to interprt its laws?
It's not living by YOUR leave. Label what you will. The argument presented is completely logical.
No it's not logical. What, you think the Constitution dropped out of the sky? Your Constitution is a direct product of English legal thinking circa 18th Century, which is influenced by legal thinking going back to before Magna Carta.
No it's not logical. What, you think the Constitution dropped out of the sky? Your Constitution is a direct product of English legal thinking circa 18th Century, which is influenced by legal thinking going back to before Magna Carta.
Sunday, November 18, 2007
[Ilya Somin, November 18, 2007 at 3:40pm] Trackbacks
A Danger of Using Foreign Law to Interpret US Law:
The use of foreign law to interpret the US Constitution is a complex subject that too often gets caught up in sound bites. Although at this point, the Supreme Court's use of foreign law in this way has been extremely limited, I have several concerns about proposals to increase that reliance. In this post, I'll just briefly mention one that hasn't gotten enough attention: the Court's lack of relevant expertise.
For a Supreme Court made up of generalists, even keeping up with all the US law that the Court has to deal with is a full-time job, one that the justices often fail at. But at least a justice addressing an issue of American law that he is unfamiliar with has the advantage of dealing with a body of law embedded in a broader legal system that he has at least some understanding of. By contrast, few if any justices have extensive knowledge of foreign legal systems. As a result, justices interpreting foreign law are likely to misunderstand the context of that law, and also to misunderstand relevant differences and similarities between the US and the foreign jurisdiction in question. Thus, even if it is theoretically possible for the Court to mine valuable insights from foreign law, it is unlikely that the real-world Court will actually be able to do so. This lack of expertise may help explain why those justices who do rely on foreign law never seem to do a systematic survey of the relevant foreign precedents, but instead simply pick a few examples that seem to support their position. To take an example from an area of law I'm familiar with, Justice Stephen Breyer sometimes relies on foreign law to justify his positions on federalism issues, as in his famous dissent in Printz v. United States. However, he has never confronted the fact that many federal systems in other democracies (e.g. - Germany) have fairly extensive judicial review of federalism issues, with judges using their power to limit the authority of the central government. Breyer, of course, has taken the position that the US judiciary should virtually never restrict federal government power on federalism grounds. Similarly justices such as Breyer and others who endorse the Court's abortion precedents routinely ignore the fact that most other nations impose more extensive constraints on abortion than would be permitted under US Supreme Court precedent.
These two examples are drawn from the work of liberal justices. However, I doubt that the conservative justices would be much better if they too started to rely on foreign law to buttress their positions in constitutional cases.
Granted, but it was decided that in the main our laws would be written, based upon a document, that was a compilation of many before it, including the Magna Carta, Mayflower Compact, etc. Unlike UK, it was decided not to have 'unwritten law' and the common law would in fact by American.
LOL! Be that as it may be, there are reasons it was decided to stick with the written documents, including Constitution, letters, Federalists Papers, etc. Maybe we are just more neat, for it can's be said less legal centered. Federal law would take over a building, don't even get started on the states!It makes perfect sense for a newly emergent nation, breaking away from British imperialism to want to define itself in a rational and considered manner. It can take what it wishes from its cultural (including legal) heritage and reject that which doesn't fit in the mould of the new nation. I need to pause for a moment. I remember reading about the trial of William Penn and how the judge ran the case (aside from the fact of the charges) and thinking, who in the bloody hell would want to incorporate that into their brand, spanking new legal system?
English common law is a mix of custom, judgements (usually poorly recorded until the establishment of the formal state reports) and written statutes (the Bill of Rights, 1689, the Habeas Corpus Act, 1679 and more). It's a misunderstanding to think that Britain has an unwritten constitution....it's there but it looks like the floor of a teenager's bedroom
