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A Constitutional Amendment About Nothing

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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…

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