Home / A Constitutional Amendment About Nothing

A Constitutional Amendment About Nothing

Comments
/
/
/
279 Views

The recent hysteria about a few peripheral citations of legal norms in other liberal democracies in Supreme Court opinions has reached some kind of apex with a speaker at a Federalist Society convention proposing a constitutional amendment banning the practice. What’s strange is the amount of energy being expended over what it quite obviously a trivial issue — it’s not clear why anyone thinks such dicta have any actual causal effects on the outcome of cases. Such citations are likely to come up almost exclusively in cases where the text of the Constitution can plausibly support a wide range of outcomes, and hence are overwhelmingly likely to be used only to back up conclusions judges have reached for independent reasons. This is certainly true of the cruel and unusual punishment clause, at issue in the case that has generated the greatest outrage about the supposedly pernicious effects of citing foreign law. Does anybody seriously think that a single vote in the case would have changed had the Constitution forbidden the citation of law of other democracies? Scalia noted in his dissent that Kennedy would be unlikely to cite foreign law when its conclusions were less favorable to his position, but that’s the point: the cites are window dressing. It may be true that Kennedy’s experience teaching abroad has had a moderating effect, but this would remain true whether his opinion cited the laws of other countries or not.

Crucial to making this triviality into a major issue is a strawman. According to Adler, the advocate of the amendment laid out the “basic case against relying upon foreign or international law in constitutional interpretation.” [my emphasis] But, of course, nobody says (as the word “rely” would seem to imply) that American judges are bound by the laws of similar countries; rather, at most it’s simply one of many sources that a judge might consult when trying to construe the meaning of an ambiguous constitutional clause. Reasonable people can differ about whether it’s an appropriate source to look at, but such pragmatic use of sources outside the constitution is utterly banal. I don’t recall any conservatives complaining about, say, Clarence Thomas’s (implausible) paean to the emancipatory effects of vouchers, although strictly speaking such policy effects are irrelevant to the question of whether state funding that goes almost entirely to parochial schools violates the First Amendment. I’d also be interested to know how many people furious about Roper have railed against the Rehnquist Court’s “sovereign immunity” doctrine, which seems to “rely” heavily on centuries-old British common law being binding in American federal courts…

FacebookTwitterGoogle+Share
  • Facebook
  • Twitter
  • Google+
  • Linkedin
  • Pinterest
  • MTBochs

    This might not be so bad after all. Wouldn’t it bar the use of the Ten Commandments or anything else Biblical in creating legal policy? They certainly weren’t written here, after all.

  • jpe

    It would cripple a broad swath of originalism in constitutional law (the amendment would bar looking to the English law from which the constitution grew and borrowed).
    And that’s about it, really. No way Roper or Lawrence would have come out differently.

  • Sinister eyebrow

    Don’t these people have anything better to do?
    I think they are terrified of the notion, however slight, that looking to European democracies to see how their legal solutions to difficult problems will lead our judiciary to actually be influenced by whether a solution was effective. Many of the effective solutions that have been found in Europe are diametrically opposed to what conservatives have been pushing for years (see Education, Comprehensive Sex, among other things). Applying that “does it work” litmus test to potential solutions to problems is anathema to conservative ideology which, almost invariably, never works when applied to real-world problems.

  • rea

    No reliance on Hadley v Baxendale? I’d better get ready to file a few claims for consequential damages for breach of contract . . .
    Doesn’t it strike everyone as horribly unconsitutional that this 1854 English decision is so important in our American contract law?
    http://en.wikipedia.org/wiki/Hadley_v._Baxendale

  • We cvall it the “FUCKING FOREIGNERS AND THEIR FILTHY HABITS!!!” amendment.
    We trust it will be recieved in the spirit it was proposed.

  • foolishmortal

    Ditch Blackstone? They can’t be serious.

  • mjd

    Just in time for their consideration of detainee cases no doubt.

  • May 20, 2006
    FOREIGN LAW SUPREME COURT POCAHONTAS
    Justice Scalia is to be commended for telling conservative legislators to cease and desist their legislative endeavors to exclude foreign law consideration from Supreme Court deliberations.
    Contrary to the best thinking of these xenophobe pandering Congressmen our cherished 230 years young founding documents were not found under Pocahontas’s skirt.
    The Declaration of Independence is essentially a French document. I repeat. Our declaration of Independence is essentially a French document.
    Kudos to Jean-Jaques Rousseau and Charles-Louis de Secondat, Baron de Montesquieu.
    Societies change and laws change with them. Jumping up and down with hands clasped about one’s ears to shut out philosophical deliberations contrary to one’s pre-set opinion is at best infantile.
    –Craig Johnson–

  • James Wimberley

    Liberals shouldn’t argue that carefully studying – not blindly following – foreign jurisprudence won’t make any difference. They should argue that it’s the right thing to do.
    “No man is an island unto himself”, and the same goes in spades for countries. The USA is part of the world; it’s a sovereign state not because it says it is, but because other countries recognize it as one. In fact the range of legal observation and reference in American jurisprudence should be widened. How about India and Australia?
    America used to be a full member of the Kantian commonwealth of civilised nations. We badly need you back.

  • Davis X. Machina

    This is certainly true of the cruel and unusual punishment clause,
    If I recall correctly, in Tro p v. Dulles, the Court majority used foreign law as a reason to find the death penalty was not cruel and/or unusual…
    Guess it depends on what answer you need to get.

  • Jay C

    Consider the source of this inane proposal: The Federalist Society? You don’t need a degree in jurisprudence to “interpret” this idea as:
    “Foreign law shouldn’t be used as any basis for American juridical deliberations – unless it reaches a decision agreeable with our political biases”
    Shorter FS: IOKIYAR

  • Bloix

    “What’s strange is the amount of energy being expended over what it quite obviously a trivial issue …”
    There’s nothing strange about the gears of the Right Wing Noise Machine grinding out yet another meaningless screech in time for the election. Why on earth would you assume that this ridiculous proposal is being made in good faith?
    Rosenkranz, as the Volokh site points out, is an advisor to the Giuliani campaign. Wait for Giuliani to pledge that he will amend the Constitution so that it will be interpreted in only in accordance with American law.

  • Agree with Bloix, this mere symbolic pandering to the gut-level American Exceptonalism types. More Bumper Sticker Jurisprudence – cf the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

  • John

    Are there any real people who are actually outraged by a Supreme Court decision that ruled it unconstitutional to execute people from crimes committed before they turn 18? Our country is a disgusting place.

  • Incontinentia Buttocks

    This Amendment is like the Flag Burning Amendment. It’s not designed to be adopted. It’s designed to energize the base by confirming their sense that the supposed problem is so grave we need to amend teh Constitution!!eleventy-one!1

  • Matt

    It always amuses me that when people fume about the (rather small) attention given to foreign law in _Lawrence_ they don’t bother to note that this was put in at all because of the use of foreign law in _Bowers_ by both the majority and especially by Burger in his concurence. Since the decisionin _Bowers_ had made reference to legal practice in other countries (and times) it was both reasonable and appropriate to do so in _Lawrence_. This is simple but you rarely see it mentioned, and almost never mentioned by a right-winger with his panties in a bunch over “foreign law”.

  • Uncle Kvetch

    It’s designed to energize the base by confirming their sense that the supposed problem is so grave we need to amend teh Constitution!!eleventy-one!1
    Yes…and more specifically, it will generate a torrent of political ads next fall informing TV viewers that “[Random Democrat] thinks foreigners know how to write laws for Americans better than Americans do.” It’s genius, really.

  • mds

    Are there any real people who are actually outraged by a Supreme Court decision that ruled it unconstitutional to execute people from crimes committed before they turn 18?
    Yes.

  • PSP

    Justice Marshall is probably doing double backflips in his grave that someone calling themselves Federalists would propose such a thing.

  • Bloix

    What Matt said. Burger in Bowers said that all decent civilized people everywhere go eww when they think of gay sex. The Lawrence majority simply pointed out that that really wasn’t so.

It is main inner container footer text