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thought that because other jurisdictions had de-criminalized homosexual sodomy, the U.S. should do so as well. This resembles the Court's claim in Atkins, and is similarly problematic because it is a statement of social policy rather than an interpretation of a legal text.
The Court's citation of the ECHR (and especially its claim that the ECHR had "rejected” the “reasoning and holding in Bowers”) suggests that constitutional courts are all engaged in a common interpretive enterprise (as in fact they are when they are interpreting a common legal text such as the Warsaw Convention). But as a matter of legal interpretation, there is no direct connection between the U.S. Constitution and foreign court opinions that address the interpretation of different documents written in different times and different countries. The mandate of the ECHR, for example, is to interpret the European Convention for the Protection of Human Rights and Fundamental Freedoms, a treaty among European nations drafted in the 1950s. Under the Convention, the question is whether sodomy laws violate the right (in Article 8(1)) to “privacy and family life” and are not justified under Article 8(2) (restrictions that are “necessary” to protect listed social values). Under the U.S. Constitution, as discussed, the question is whether the right is “fundamental” and, if not, whether the law is rationally related to a legitimate governments interest. Thus in confronting sodomy laws the ECHR and the U.S. Supreme Court faced entirely distinct texts, with a distinct body of precedent elaborating upon the meaning of key phrases. It is too simplistic to say that both are doing constitutional law, and so doing the same thing. Rather, they are both interpreting texts, but the texts they are interpreting are distinct.
Dudgeon v. United Kingdom, the leading European case cited in Lawrence, confirms this point. According to Dudgeon, the principal question it faced was whether the sodomy law was “necessary for the protection of health or morals” (the quoted language being the text of Article 8(2) of the Convention). The ECHR emphasized that in this context “necessary” meant a “pressing social need” or a “particularly serious reason” and not merely “reasonable.” 21 In the U.S. case, in contrast, assuming that the Lawrence Court was following its own precedents in other respects, the Court was asking not whether sodomy laws were “necessary” but whether they were reasonable—that is, exactly the question Dudgeon said it was not ask
The question, then, is how the conclusions of a European Court, interpreting a legal document totally distinct in language and context from the U.S. Constitution, could have implications for the correct interpretation of the U.S. Constitution. In a strictly legal sense, the answer should be that they do not, because the two courts are engaged in a distinct legal enterprise. Contrary to the observations of one U.S. Supreme Court Justice, there is no such thing as a "global legal enterprise in constitutional law,” 22 because there is no single global constitution. There is broad commonality among constitutional courts only if one thinks that the courts are not really interpreting texts, but deciding whether sodomy laws are justifiable as a matter of moral and social policy.
As in Atkins, under our constitutional system legislatures not courts should make decisions regarding matters of moral and social policy. It is appropriate for legislatures to consider the moral and social policy decisions of foreign jurisdictions with respect to anti-sodomy laws to guide their own moral and social decisionmaking on that issue. Courts, on the other hand, make (or should make) decisions concerning interpretation of specific legal texts. It is appropriate for courts to consider the interpretive decisions of foreign jurisdictions to guide their own interpretive decisions on the same legal texts. As the foregoing discussion illustrates, in relying on the Dudgeon case in Lawrence, the Supreme Court was not looking to the European court for interpretative guidance as to the meaning of a legal text, but was looking to the European court for guidance as to moral and social policy.
In sum, in both Lawrence and Atkins the Supreme Court did not appear to be looking to foreign materials to aid in legal interpretation of the text of the U.S. Constitution, but rather it looked to foreign materials to provide what Professor Gerald Neuman has called “normative insight.” But it is contrary to the constitutional role of courts for courts (rather than legislatures) to be making moral and social policy in this way. Courts should
decide what a text means, not what the best moral and social outcome should be. The meaning of a text that forms part of U.S. law is not affected by what other jurisdictions have decided about matters of moral and social policy, or by what other courts have decided about the meaning of different legal texts.
21 Dudgeon v. United Kingdom, 45 E.C.H.R., para. 49–52 (1981).
22 Justice Breyer, quoted in Roger Alford, Misusing International Sources to Interpret the Constitution, Am. J. Int'l L. (forthcoming 2004).
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 deciding, which of (say) Japan, Thailand, Pakistan, China, etc., are sufficiently “civilized” to serve as moral precedents.
23 See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959). As the Court's plurality put it in Planned Parenthood of Pennsylvania v. Casey, the 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. 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, 17779 (1999) (“Legal rules suppressing relevant probative evidence from criminal trials are few and far between outside the United States.").
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 díffer 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.
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.