26

PRINCIPLED ADJUDICATION AND THE DANGER OF USING FOREIGN MATERIALS

While realists may say that courts routinely make decisions of moral and social policy, there are particular dangers of U.S. courts relying (or purporting to rely) upon foreign materials in this process. As part of our constitutional system, we expect courts to make decisions on the basis of neutral, generally applicable legal principles.23 If U.S. courts adopt a practice of relying on foreign materials, we would expect that foreign materials be treated as authoritative guides as a general matter, not merely in cases in which the foreign materials happen to support moral and policy intuitions arising from other sources. But this principle leads to one of two outcomes, each unsatisfactory.

First, courts might in fact treat foreign materials as authoritative across the board. The result, though, would likely be a lessening of U.S. rights. The recent push for foreign materials has come most strongly from rights advocates, and in Lawrence and Atkins the United States lagged at least parts of the world, and parts of world opinion, in guaranteeing the rights at issue. But there is nothing necessarily rights-enhancing about foreign materials. In many areas, it seems likely that the United States is an outlier in protecting rights that few other societies recognize such as the First Amendment. As I have suggested, freedom of speech is one important example. Another is freedom of religion: many countries have much greater establishment of religion (as in Europe, where many countries have an established church or explicitly "Christian" parties); at the same time, many countries have lesser protections for the free exercise of religion (as the controversy in France over headscarves and other religious headgear suggests).24

Beyond the First Amendment, it seems clear that many foreign nations lack the rights, for example, to bear arms and own property guaranteed in the U.S. Constitution-indeed, as with many of our constitutional provisions, the framers' intent was to guarantee rights that were not traditionally recognized elsewhere. In addition, the United States has elaborate procedural protections for criminal defendants, as a matter of the Court's interpretation of open-ended constitutional clauses such as "unreasonable" search and "due" process, that likely go far beyond those existing in most foreign nations. For example, it appears that the "exclusionary rule" of the Fourth Amendment, which excludes from trial evidence obtained in unconstitutional searches, has few counterparts worldwide. 25 Should each of these rights be re-evaluated to see if they are generally recognized by foreign nations, and abandoned if they are not? If we are serious about the project of using foreign materials, we must "take the bitter with the sweet" and use foreign materials to contradict, not merely to confirm, our own view of rights.

I doubt, though, that there is the moral and political will to apply foreign materials in this way. More likely, then, is the selective use of foreign materials to support judgments reached for other reasons. One can already see this developing in Supreme Court advocacy and jurisprudence. First, there is selective citation to countries whose practices happen to support a particular result, but not to those that contradict it. In Lawrence, for example, the Court discussed some jurisdictions that had overturned or repealed their sodomy laws, but did not discuss anything close to a general practice of nations. Though I have not made systematic inquiries, it seems likely that quite a number of foreign jurisdictions criminalize sodomy. This went unmentioned in Lawrence. In Atkins, the Court claimed, without adequate support, that "world opinion" opposed execution of the mentally handicapped. In fact, it appears that many leading death penalty jurisdictions do not make such a categorical exception, and that opposition comes mostly from countries and scholars that oppose the death penalty across the board.

Of course, one might say that some countries are better moral models than others. Should it matter, for example, that Chinese law apparently permits the execution of the mentally handicapped? But attempting to articulate a legal principle justifying this sort of selectivity, if done explicitly, leads courts into another unsatisfactory choice. Presumably we do not want attorneys arguing, and the Supreme Court

23 See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959). As the Court's plurality put Court's legitimacy arises from it "making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation." 505 U.S. in Planned Parenthood of Pennsylvania v. Casey, the 833, 866 (1992).

24 See Christopher Marquis, U.S. Chides France on Effort to Bar Religious Garb in Schools, N.Y. Times, Dec. 19, 2003, at A8.

25 See Erik J. Luna & Douglas Sylvester, Beyond Breard, 17 Berkeley J. Int'l. L. 147, 177– 79 (1999) ("Legal rules suppressing relevant probative evidence from criminal trials are few and far between outside the United States.").

deciding, which of (say) Japan, Thailand, Pakistan, China, etc., are sufficiently "civilized" to serve as moral precedents.

A further selection problem is that the Supreme Court has invoked foreign materials only in some cases, and not others. As Professor Roger Alford has pointed out, the Court's recent decision invalidating the previous federal law against late-term abortions under the due process clause, Stenberg v. Carhart, made no reference to foreign materials.26 Yet it seems likely that foreign jurisdictions have grappled with this issue. Moreover, it seems at least possible that the weight of foreign practice (which generally does not embrace abortion rights as fully as U.S. jurisprudence) does not permit late-term abortions. It is hard to square Stenberg's disregard for foreign practice with Lawrence, which involved the same clause of the U.S. Constitution, other than on the ground that in Lawrence the Court approved of the foreign practice and in Stenberg it did not.

This selectivity confirms that courts are not really being guided by foreign materials in their readings of specific texts, but are using foreign materials to support decisions of moral and social policy reached on other grounds.27 And this further confirms that considering foreign practice as a guide to moral and social policy decisionmaking is properly a legislative, not a judicial, function. Legislatures acknowledge that their decisions are policymaking that is not based on interpretive principles. Thus they are free to consider the views and practices of foreign jurisdictions, adopting what they like and discarding what they do not like, for policy reasons without the need to justify their decisions in judicial terms. When courts behave in this way (as it seems inevitable that they will in dealing with foreign materials), the rule of law and the role of courts is undermined.

CONCLUSION

In Lawrence and Atkins, the use of foreign materials, while open to serious question, probably did not affect the ultimate outcome of either case. To see the potential scope of the use of foreign materials, it may be useful to consider recent comments by Professor Harold Koh of Yale Law School. In an article published in the U.C. Davis Law Review, Professor Koh urged that human rights advocates use foreign materials to persuade the Supreme Court to abolish the death penalty.28

It seems plain that the Framers did not intend to exclude the death penalty through the Eighth Amendment. It also seems plain that the death penalty, in appropriate circumstances, is consistent with modern American social values, based on the broad acceptance of the death penalty in the United States. But Professor Koh is correct that many countries, particularly in Europe, reject the death penalty as a matter of moral and social policy.29 The question is whether and how we should take that into account.

As indicated above, I think it appropriate for Americans to consider Europe's abolition of the death penalty in deciding whether we should retain it. The key, though, is that the legislatures (and the people, acting through their legislatures) should consider it, not the courts. The courts' role is limited to deciding whether the death penalty is consistent with the meaning of the Eighth Amendment-either its original meaning, or, in some versions, its "evolving" meaning as informed by the evolving values of American society. Europe's current view of the death penalty as a matter of moral and social policy does not inform the original meaning of the Eighth Amendment nor the values of modern American society, and so should not figure in the courts' view of the Eighth Amendment. Professor Koh's suggestion that we give consideration to Europe's views is correct, but addressed to the wrong forum. The decision whether or not to change American moral and social policy to abolish

26 Stenberg v. Carhart, 530 U.S. 914 (2000); see Roger Alford, Misusing International Sources to Interpret the Constitution, Am. J. Int'l L. (forthcoming 2004).

27 See Diane Marie Amann, Raise the Flag and Let it Talk: On the Use of External Norms in Constitutional Decisionmaking, 2 Int'l J. Const. L. (forthcoming 2004). Professor Amann predicts, as I do, that courts will likely behave in this way, adopting "external norms" (i.e., foreign views of moral and social policy) that they like and discarding those they do not like, in an essentially legislative fashion. We differ on whether this is appropriate.

28 Harold Hongju Koh, Paying "Decent Respect" to World Opinion on the Death Penalty, 35 U.C. Davis L. Rev. 1085 (2002).

29 It is worth noting that Professor Koh's use of foreign materials is-like the Court's-selective. The death penalty has not been abolished in all countries, including in liberal democracies such as Japan. Moreover, polls suggest that in Europe the death penalty is much more popular among the ordinary population that among elites. See Crime Uncovered, The Observer, April 27, 2003 (reporting poll showing 67% in Britain support re-introduction of the death penalty). Moreover, I doubt Professor Koh would endorse using foreign materials to guide courts' decisionmaking on abortion or criminal procedure matters where the United States is more protective of rights than other nations.

the death penalty may take into account Europe's view-but that decision should be taken by legislatures, not courts.

For these reasons, I think it is important for courts to limit their use of foreign materials to situations in which the foreign materials are clearly related to interpretive questions of a particular text. When courts use foreign materials to support freewheeling explorations into moral and social policy, they exceed the judicial role.

Mr. CHABOT. Thank you, Professor.

And our final witness this morning will be Professor McGinnis.

STATEMENT OF JOHN OLDHAM MCGINNIS, PROFESSOR, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, CHICAGO, IL Mr. MCGINNIS. Thank you very much, Mr. Chairman. I'm very grateful to be here today on I think a very important issue. I'd just like to make a few points to emphasize and to perhaps disagree with certain points that have been made.

First of all, I think it is very much that this Committee and this Congress has complete authority to pass a resolution offering its own opinion on how the Constitution should be interpreted. I think, in fact, the Congress should do more of that. The Congress has an independent authority to interpret the Constitution for the courts. Of course, the Congress cannot prescribe or change the way a court is going act, but that doesn't mean that it's not valuable for the Congress to offer its own opinion on how the Constitution should be interpreted. Indeed, it's more-they have done so in the past on things like the Pledge of Allegiance case, but it's more important in something like this, a cross-cutting issue across constitutional law that raises questions about the first principles of our republic. So I think there is no doubt the Congress has authority to do this.

Secondly, I think there's also no doubt that this is a serious problem that the courts are using and are thinking of using more often in the future a foreign and international law as perhaps outcome determinative precedent in U.S. constitutional cases, and I think one can cite the speech that the Chairman cited. In fact, I would refer to Justice O'Connor's speech and quote this language: After discussing the Atkins case in Lawrence v. Texas, she said about those cases in ruling that consensual activity in one's home is constitutionally protected. The Supreme Court relied upon, in part, on a series of precedents from the European court, and I suspect that we're going to do so more in the future, relying on the rich resources available in the decisions of foreign courts.

The term "relied upon" I think suggests that these kind of precedents can be outcome determinative. If they are mere decoration in opinions, then I think the Court wants to be very careful and clear about that these are not going to influence the actual outcome; otherwise, I think the Court's decisions become less transparent to the public.

The question of why we should not use contemporary foreign law to interpret the Constitution I think relates in part to the proper way of interpreting the Constitution. The Constitution should be interpreted according to its original understanding. It would be very rare that contemporary foreign law could be relevant to that inquiry of what is the original understanding, and therefore I would distinguish the uses of international law in the 19th Century. Often international law at that time, when it grew up right

around the time of the Constitution, could be useful to understand the meaning of the Constitution.

Moreover, I think the use of the international or foreign law in the Federalist Papers really proves the point here. After all, the Federalist Papers were advocates for the Constitution. They were really acting to persuade the ratifiers to ratify the Constitution. Surely, it would be completely appropriate for Members of Congress to refer to international decisions if they ask their colleagues to pass a statute. That's quite a different use of foreign law than to use it in the course of interpretation of the Constitution.

I just add three final points that I'd like to emphasize about why I think there are risks, really quite pragmatic risks, about using our foreign law to interpret our constitution. One that's been discussed previously is the additional discretion it gives to Supreme Court justices. They can pick and choose the kinds of decisions that they would like to support their case, and that is problematic.

But there are two other things that I think have not really been focused on that I think are equally problematic with using foreign law. One is the idea that foreign law may seem like an American law, but is really very different, and that's exemplified by Lawrence. As Professor Rubenfeld of Yale University has pointed out, European human rights law really proceeds on a whole different theory from American law. It really proceeds on a natural law theory, something that is going to be imposed quite on the people, whereas our own human rights have really been actually produced by the people in the deliberative process of ratifying the Constitution; and our system also has a lot more emphasis on federalism, a lot more emphasis on decentralization and competition in human rights law and, again, not the kind of centralized imposition, typical of Europe.

And, therefore, it can be quite misleading to try to transplant the European decision into the American context, because we have a whole set of different institutions for creating norms. I'm not at all suggesting that the European system isn't good for them, but it's not necessarily good for us. It's a mistake to look this tip of the iceberg of a whole complex structure of government and then translate it over into our law.

The final point is that ultimately too much reliance on foreign law has the potential to alienate our citizens from their own constitution. It's "we the people" who have constituted our constitution, and that's more than a formal point. Our citizens' affection for their own constitution is one of the things that keeps our republic stable. In the 19th Century, that affection was expressed, actually, through parades in the street in favor of our constitution. That may be a little harder to get in an age of C-Span, to get people to parade in favor of their constitution, but that affection for their constitution is still crucial to maintaining the stability and their interest in the Constitution.

There's a risk of citing these foreign cases and relying on these foreign cases. That might seem very chic to the cognoscenti, but that cosmopolitan style comes with a price. It comes with a price of alienating the affections of the citizens on whom constitutional government ultimately depends.

Thank you very much, Mr. Chairman.

[The prepared statement of Professor McGinnis follows:]

PREPARED STATEMENT OF JOHN O. MCGINNIS

Thank you, Mr. Chairman, for inviting me to participate in this hearing on the important subject of the federal judiciary's use of foreign or international law to interpret the Constitution and other laws.

First, I want to make clear that this House has the authority to offer its own opinion on the relevance of foreign or international law to constitutional interpretation, or for that matter, any other contested subject of constitutional interpretation. Congress's duty to share its independent interpretation of the Constitution flows directly from a system of separated powers, designed in part to ensure that each branch has the opportunity to correct the mistakes and excesses of the others. There is no area in which such a self-correcting mechanism should be given freer play than in the interpretation of a constitutional republic's fundamental document. As James Wilson, Framer of the Constitution, Justice of the Supreme Court, and first law professor of the republic, stated, "[t]here is not in the whole science of politicks a more solid or a more important maxim than this—that of all governments, those are the best, which, by the natural effect of their constitutions, are frequently renewed or drawn back to their first principles."1 By holding a hearing on whether it is appropriate to use contemporary foreign law as a source of authority in constitutional law, this Committee is directly contributing to conserving the first principles of republican government.

This hearing, however, is not prompted simply by the academic question of the relevance of foreign and international law to constitutional interpretation. In the recent case of Lawrence v. Texas,2 the Supreme Court held that the due process clause protected a substantive right to sodomy and relied upon a case from the European Union as persuasive authority for that result.3 After citing the case, Justice Anthony Kennedy, writing for the majority, pressed the European analogy:

The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.4

Thus, the question I want to address is whether the Court should use foreign or international law as persuasive authority in interpreting our own Constitution. I believe that subject to certain caveats the Court should not use foreign law or international law and that its use in Lawrence is exemplary of all that is wrong with such an approach to constitutional interpretation. I should note that this question is entirely separate from the question of whether Lawrence was rightly decided and certainly separate from whether laws against sodomy are wise. I, for my part, think such laws are unwise and should be repealed.

One straightforward argument that rules out most use of foreign law in constitutional interpretation is that in almost all cases it is inconsistent with the correct way of interpreting the constitution-interpreting the Constitution according to its original meaning. Obviously, I cannot provide a complete defense of originalism here, but two important factors powerfully favor its soundness as a method of constitutional interpretation. The first argument for originalism derives from the reasons that justify giving a provision of the Constitution priority over a statute when the two conflict. A constitutional provision has a greater presumption of beneficence than a statute because it commanded broader social consensus, having had to pass supermajoritarian hurdles to be enacted.5 But that beneficence depends on the meaning that the ratifiers of the constitutional provision attached to it. It was this meaning that commanded the widespread consensus that permits it to trump statutes passed by contemporary majorities. Therefore only by employing the original

1 See 1 THE WORKS OF JAMES WILSON 291 (Robert Green McCloskey, ed., 1967).

2 123 S.Ct. 2742 (2003).

3 The case was Dudgeon v. United Kingdom, 35 Eur. Ct. H.R. (series A) 1981. Some have argued that this citation was simply a response to the claim in Bowers v. Hardwick that homosexual conduct has never been tolerated in Western civilization. Neither the majority opinion in Bowers nor Chief Justice Burger's concurrence, however, made any such claim. In any event, the best interpretation of the language quoted is that the Court is citing this as persuasive precedent for its own holding.

4 123 S. Ct. at 2483.

5 John O. McGinnis & Michael Rappaport, Our Supermajoritarian Constitution, 80 TEX. L. REV. 703, 791 (2002).