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First, Scalia explains that it makes no sense to count states that have no death penalty together
with states that prohibit merely the execution of offenders who were younger than 18, because the
former set of states have expressed no position that offenders under 18 deserve special immunity. In
Scalia's colorful analogy: “Consulting States that bar the death penalty concerning the necessity of
making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen
in a consumer-preference poll on the electric car.” It follows that “[w]ords have no meaning if the views
of less than 50% of death penalty States can constitute a national consensus.”
Second, Scalia criticizes the majority for "proclaimling) itself sole arbiter of our Nation's moral
standards," rather than discerning those standards from the practices of our people.” He points out that
Kennedy “pick[s] and choos[es]” the scientific and sociological studies that support his position and that
none of these studies even "opines that all individuals under 18 are unable to appreciate the nature of
their crimes." He explains that Kennedy's “startling conclusion" that juries “cannot be trusted with the
delicate task of weighing a defendant's youth” “undermines the very foundations of our capital
Third, Scalia confronts head-on the remarkable confirming role that Kennedy awards the “world
• “Though the views of our own citizens are essentially irrelevant to the Court's decision today, the
views of other countries and the so-called international community take center stage."
• As for Kennedy's reliance on Article 37 of the U.N. Convention on the Rights of the Child:
“Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the
United States, I cannot see how this evidence favors, rather than refutes, its position."
• “[T]he basic premise of the Court's argument—that American law should conform to the laws of
the rest of the world-ought to be rejected out of hand. In fact the Court itself does not believe
it.” Scalia proceeds to point out that the Court has never sought to follow foreign law on matters
ranging from the exclusionary rule, to church-state relations, to abortion. “To invoke alien law
when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking,
• With respect to Kennedy's closing oration: “I do not believe that approval by 'other nations and
peoples' should buttress our commitment to American principles any more than (what should
logically follow) disapproval by other nations and peoples' should weaken that commitment.
More importantly, however, the Court's statement flatly misdescribes what is going on here.
Foreign sources are cited today, not to underscore our 'fidelity' to the Constitution, our pride in
its origins,' and 'our own (American] heritage. To the contrary, they are cited to set aside the
centuries-old American practice—a practice still engaged in by a large majority of the relevant
States of letting a jury of 12 citizens decide whether, in the particular case, youth should be the
basis for withholding the death penalty.” (Emphasis and brackets in original.)
2. Public Declarations by Justices
Since this subcommittee's March 2004 hearing, at least two Justices have publicly defended
and, indeed, advocated the use of foreign law in support of rulings on the meaning of the Constitution.
The inability of these Justices to ground that practice in legitimate legal principle and the lack of any
discernible limits on their employment of that practice fully justify the alarms expressed by members of
this subcommittee about that practice.
a. Justice Ginsburg
On April 1, 2005, Justice Ginsburg delivered a speech to the American Society of International
Law that defended the Supreme Court's increasing use of foreign law in support of its rulings on the
meaning of the Constitution. The title of her speech—“A decent Respect to the Opinions of
(Human]kind': The Value of a Comparative Perspective in Constitutional Adjudication”-nicely
encapsulates the core flaws in her position.
First is her thinly disguised contempt for the Framers. Obtusely appealing to the Declaration of
Independence to justify the Supreme Court's dependence on foreign law, Ginsburg cannot resist the urge
to purge the gender bias she perceives in the Framers' observation that “a decent Respect to the
Opinions of Munkind” requires a declaration of the “causes which impel them to the Separation.” Nor,
apparently, did she notice that one of those stated causes was that King George III “has combined with
others to subject us to a Jurisdiction foreign to our Constitution."
The rhetorical centerpiece of Ginsburg's speech is a crude attack against originalists—those who
adhere to the original understanding of the Framers' Constitution and of the various amendments to it.
Ginsbury absurdly insinuates that the position taken by Chief Justice Rehnquist and Justices Scalia and
Thomas that constitutional rulings should not be based on foreign developments has some special
kinship with Chief Justice Taney's notorious ruling in the Dred Scott case.
Taney's opinion in Dred Scon is deservedly infamous, but not because of its recitation of
originalist orthodoxy. Besides its overt racism, the main legal defect in Taney's opinion is that, while
pretending to be faithful to originalist principles, it in fact marked the Court's first use of the modern
judicial activist's favorite tool, “substantive due process," to invalidate a statute the Missouri
Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories.
Notably, the dissenters in Dred Scon invoked and properly applied the very originalist principles that
Ginsburg finds abhorrent: “I prefer the lights of Madison, Hamilton, and Jay, as a means of construing
the Constitution in all its bearings," wrote Justice McLean. “f a prohibition of slavery
a Territory in
1820 violated this principle of [due process), the ordinance of 1787 also violated it," explained Justice
Curtis in exposing Taney's deviation from originalism.
In attacking originalism as “frozen in time,” Ginsburg slights the genius of the Framers in setting
up a system in which the people, through their elected representatives and within the broad bounds
established by the Constitution, adapt the laws to changing times. She claims that judges “honor the
Framers' intent 'to create (sic) a more perfect Union'" when they rewrite the Constitution to comport
with their own understandings of the needs of the day. But it is “We the People of the United States,"
not judges, to whom the Constitution looks to “form a more perfect Union."
The second basic flaw in Ginsburg's speech is signaled by her elusive subtitle. What exactly
does a "comparative perspective” in constitutional adjudication mean, and what is its value? Addressing
a group of international lawyers, Ginsburg resorts to kindergarten talk--"we can learn from others," "we
can join hands with others," we should “share our experience”—but never even attempts to explain how
a foreign court's decision on how a foreign law measures up to a foreign charter can or should have
analytical value in construing our Constitution. She emphasizes that she does not regard foreign
decisions as "controlling authorities.” But she clearly leaves open the possibility that those foreign
decisions could be the dispositive tipping factor in any particular case.
Preserving her own flexibility to pick and choose opportunistically, Ginsburg also utterly fails to
delineate any principle that would dictate when foreign decisions should come into play and what
weight they should have. In short, she has no response to Scalia’s criticism: "To invoke alien law when
it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but
When Ginsburg's position is clear, her understanding is muddled. Ginsburg points out that the
Framers understood that the United States "would be bound by the Law of Nations,' today called
international law.” But even setting aside her badly confused and simplistic equation of the Law of
Nations with international law, the Constitution's conferral of power on Congress "[t]o define and
punish ... Offenses against the Law of Nations” makes clear that it is up to Congress, not judges, to determine which obligations under the Law of Nations should apply domestically.
Similarly, Ginsburg points out with pride that her separate opinions in the Michigan racial
preference cases cite two United Nations Conventions-one that the United States has ratified, and one
that “sadly” it “has not yet ratified”—as evidence that the international understanding of racial
preferences supports her application of the Equal Protection Clause. But the very fact that she sees no
effective difference between a ratified treaty—which (whether or not it has any domestic effect) is part
of “the supreme Law of the Land" under the Constitution and an unratified convention demonstrates
the incoherence of her views.
Ginsburg also specifically expresses her disapproval of H. Res. 97 and asserts that “it is
disquieting that [H. Res. 97 and its Senate counterpart) have attracted sizable support."
b. Justice Breyer
In January 2005, Justice Breyer and Justice Scalia engaged in a public debate on the
constitutional relevance of foreign court decisions. The transcript of that debate is available online at
C4757FDO1E85256F890068E6E02OpenDocument. My quotations below are taken from that transcript.
In his remarks, Breyer made explicit what was fairly implicit in Ginsburg's speech--namely,
that it is impossible to develop any rules on when the Court should rely on foreign court decisions in
construing the Constitution and which decisions it should look to. (“f you're going to develop a
jurisprudence of when to refer to a non-binding decision of a foreign court, I mean, it's—P'll agree that
isn't going to work.") Nonetheless, he offered the following propositions in support of invoking foreign
court decisions in construing the Constitution. I respond very briefly to each.