The use and abuse of foreign law by the U.S. Supreme Court.
Apr 10, 2006, Vol. 11, No. 28 • By JEREMY RABKIN
PRESUMABLY, IT WAS NOT quite the debate Justice Ginsburg had in mind. But then, it's not clear that what she really wanted was a debate. Maybe we should have one, anyway.
At the beginning of February, Ruth Bader Ginsburg traveled to South Africa, where she gave a public address on "The Value of a Comparative Perspective in Constitutional Adjudication." She defended the Supreme Court's recent practice of taking guidance from foreign law when interpreting the U.S. Constitution. She acknowledged that the practice has been criticized. She expressed concern at bills before Congress condemning the practice.
Justice Ginsburg has given this sort of speech before, as have several of her colleagues on the Court. She tried to give more edge to this speech by noting that dismissive treatment of foreign opinion had also featured in the Supreme Court's 1857 decision in Dred Scott v. Sanford, which proclaimed a constitutional right to hold slaves--whatever Congress or international opinion might say. If that were not enough to stigmatize modern-day critics, Ginsburg added that congressional protests "fuel the irrational fringe." A posting on an Internet "chat" site, she explained, had denounced Justice O'Connor and herself for citing foreign law in their opinions and then called on "commandos" to see that "those two justices will not live another week."
The speech got little attention until the story about this threat was picked up by bloggers and then finally by major newspapers. The threat, it turned out, was already a year old and presumably not uncommon in the age of Internet bombast. Justice Ginsburg's allusions provoked exasperation. Even the Washington Post complained, in a March 21 editorial, that questioning appeals to foreign law doesn't make someone a racist "or an aspiring domestic terrorist" and chided Ginsburg for "stooping to such insinuations."
But it will be too bad if comment over Justice Ginsburg's manners deflects attention from her position. There is a real debate on this matter, and there should be. The Court appealed to foreign legal practice in three recent constitutional cases: rulings restricting capital punishment in 2002 and 2005 and the ruling against a Texas antisodomy law in 2003. Each time, Justices Scalia and Thomas and the late Chief Justice Rehnquist protested the propriety of such outsourcing. Justice Scalia has made several public speeches in the past two years, criticizing the practice Ginsburg defends. Justice O'Connor and Justice Breyer have given speeches echoing the position of Justice Ginsburg. Quite a few law professors have weighed in on each side. And there are those resolutions of condemnation kicking around in Congress.
If the debate has remained rather academic, part of the reason is that it is hard to disentangle from technical questions. Everyone concedes that references to foreign legal standards can help U.S. courts determine the meaning of treaties to which the U.S. is a party. Everyone concedes that historical sources of English law, particularly when known to the Framers of the Constitution, might help to shed light on the intended meaning of particular constitutional provisions. It turns out that Supreme Court justices have looked to foreign law in a variety of circumstances over the past 200 years. To distinguish appropriate from inappropriate references, scholars are prone to invoke their own pet theories on constitutional adjudication--often falling back on entrenched positions in long-standing debates on when the Constitution should be interpreted in accord with its "original understanding."
Still, even for people who don't want to be drawn into the wrangling of specialists, there are basic reasons to worry about the Court's recent practice of enlisting foreign authorities to smooth the way for contested readings of our own Constitution. Three general objections are particularly worth noticing. Call them the political, the strategic, and the metaphysical objections.
START WITH THE BASIC POLITICAL PROBLEM. The fault lines here are unusually stark. Liberals are in favor of foreign appeals and conservatives against. The Washington Post headlined its first report on Justice Ginsburg's speech "Ginsburg Faults GOP Critics, Cites a Threat From 'Fringe.'" It is all there in one headline--except for the failure to describe "Ginsburg" as a "Lib" justice or a "Dem" appointee.