Thursday, December 21, 2006

Supreme Court Justices Bryer and Scalia Discuss the Use of Foreign Law in Interpreting the US Constitution

Here's a transcript of Justices Bryer and Scalia, at AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW, THURSDAY, JANUARY 13, 2005 on looking to foreign law to interpret American Law (US Constitituion). I heard this a while ago, the audio, and was shocked and angered by Bryer's views. What makes this worrisome is that the US Supreme Court is interpreting our Constitution in light of other countries' laws. Currently, Germany is trying to crack down on homeschoolers. You could be next. Go here for the news article.

Here's a few snippets:

Justice Bryer: Look, let me be a little bit more frank, that in some of these countries there are institutions, courts that are trying to make their way in societies that didn't used to be democratic, and they are trying to protect human rights, they are trying to protect democracy. They're having a document called a constitution, and they want to be independent judges. And for years people all over the world have cited the Supreme Court, why don't we cite them occasionally? They will then go to some of their legislators and others and say, "See, the Supreme Court of the United States cites us." That might give them a leg up, even if we just say it's an interesting example. So, you see, it shows we read their opinions. That's important.

JUSTICE SCALIA: 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 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 -- I mean, the Founders used a lot of foreign law. If you read the Federalist Papers, it's full of discussions of the Swiss system, German system. It's full of that. It is very useful in devising a constitution. But why is it useful in interpreting one?

Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don't think it changes since then. Now, obviously if you have that philosophy -- which, by the way, used to be orthodoxy until about 60 years ago -- every judge would tell you that's what we do. If you have that philosophy, obviously foreign law is irrelevant with one exception: Old English law, because phrases like "due process," the "right of confrontation" and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it's all old English law. All right, if you have that theory, you can understand why foreign law is irrelevant. So he will never convert me. I just have a -- (laughter) --

But if you're looking for the evolving standards of decency of American society, why would you look to France? The only way in which it makes sense is if you have a third approach to the interpretation of the Constitution, and that is 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 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 for you to say, I can make up what the moral values of America should be on all sorts of issues, such as penology, the death penalty, abortion, whatever? That's the only context in which the use of foreign law makes sense, because what we're doing is not looking to history, as I do, not looking to the mores of contemporary American society, which we did for a while -- we used to see how many states had abolished, for example, in Koker -- how many states had abolished the death penalty for rape. All except one. Well, you could say we devolved. But we have put that behind us. And in our last Eighth Amendment case, eight states -- no, what was it? -- no -- 18 states out of the 38 states that have capital punishment refused to impose it upon the mentally deficient. The other states left it up to the jury as to how mentally deficient he was and whether that justified the crime, given how heinous it was. Nonetheless, we said even though only 18 out of 38, we have now reached a change in our moral perceptions. I suggest that change is based not upon the theory that you're looking for what the moral perceptions of America is, but that you're looking for moral perceptions of the justices. And I frankly don't want to undertake that responsibility. I don't want to do it with foreign law, and I don't want to do it without foreign law. I sleep very well at night, because I read old English cases. (Laughter.) And there's my answer.

JUSTICE BREYER: I think that's pretty good. I think that's really what's worrying people. And of course I think that underneath that my own views, 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 in those few cases where such a thing is determinative how to find answers that aren't -- I mean, I'm tempted to say Bob Browker (ph), who is a good judge up in Massachusetts, used to say, "When I want to know what the common man thinks, I ask myself what I think, and I'm right every time." (Laughter.) That's not it. By the way, I want to keep a concession -- .....

JUSTICE BREYER: Well, I -- India -- India -- they've written a pretty good opinion. There was one in Canada. The U.N. had discussions on this. And they weren't all one way. And I cited things the other way too, anything I could find. And then I think I may have made what I call a tactical error in citing a case from Zimbabwe -- not the human rights capital of the world.

JUSTICE SCALIA: 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...

But most of all, what does the opinion of a wise Zimbabwe judge or a wise member of the House of Lords law committee, what does that have to do with what Americans believe, unless you really think it's been given to YOU to make this moral judgment, a very difficult moral judgment? And so in making it for yourself and for the whole country, you consult whatever authorities you want. Unless you have that philosophy, I don't see how it's relevant at all.