10 Nov Gonzales Criticizes Reliance on Foreign Authority
1. Sometimes reliance on international law is appropriate. “Judges and lawyers routinely use international law in other contexts. For instance, judges and lawyers seeking to interpret our treaty obligations routinely consider the interpretations of our treaty partners. Sometimes our statutes direct us to consider international law, as when the Foreign Sovereign Immunities Act creates jurisdiction over cases involving property “taken in violation of international law,” and foreign law will often be relevant in the litigation of public and private contract disputes involving foreign parties. All this is as it should be….”
2. Sometimes reliance on foreign law is appropriate. “I agree that foreign law has a role to play in the interpretation of the Constitution, but I think it is a limited one. The roots of our legal system are in England, and so we naturally look to English common law of the Founding era to help us understand the Constitution.”
3. The trend is not limited to a few isolated cases. “The increasing frequency of such references, and length to which they are discussed in opinions, suggest to me that the incidents are not isolated and that such references are not added as a mere curiosity, but as an extra weight on the scale.”
4. Reliance on foreign precedent undermines the Constitution’s clarity and certainty. “[T]he sheer difficulty of choosing potentially relevant precedents from the vast array of available foreign-law sources means, I believe, that any use of foreign law will tend to undermine the clarity and certainty of our Constitution.”
5. Reliance on foreign precedent undermines the Court’s legitimacy. “[M]ore fundamentally, the use of foreign law poses a direct threat to legitimacy, including to the legitimacy of the Court itself….Reliance on foreign law… place[s] in jeopardy the reverence Americans have for the laws and for the institution of the Supreme Court….The Court has earned the respect of the people. They expect that it will do its best to give a fair and impartial interpretation to our sacred text, the Constitution. The Court risks squandering that reserve of goodwill if it takes actions seen as inconsistent with that expectation.”
6. Comprehensive comparative analysis is impossible. “If we accept that foreign law could properly be used in construing the meaning of the Constitution, at a minimum, surely we would only want to do so in a way that “comprehensively examines ‘all relevant’ international sources.” But any such approach is probably unachievable. It may be impossible for even the most conscientious judge or lawyer to avoid being selective, or at least arbitrary, in the use of foreign law.”
7. Comparative analysis must take into account context. “Beyond the particulars of a cited provision, moreover, the legal systems of the world also vary considerably, each reflecting the unique history, traditions, and values of its own citizenry – as ours reflects the uniqueness of America.”
8. The trend poses serious problems for litigators. “The Solicitor General and the lawyers in his office understand that foreign-law materials might influence the vote of one or more members of the Court, and we may feel obliged as dutiful advocates for our clients to cite such materials. Thus, the growing tendency by some members of the Court to look to precedents from overseas in construing the Constitution has a direct impact on our work. Frankly, I don’t know how we begin to identify the relevant universe of foreign sources and precedents that might be deemed persuasive by one or more Justices.”
9. The trend poses serious problems for foreign relations. “The conduct of America’s foreign affairs has been entrusted to the Executive Branch, not the courts, precisely so that our Nation may speak with one voice in this delicate area. The Court itself has wisely recognized this principle many times over the history of the Republic. Yet, some justices seem to acknowledge that they refer to foreign law as an attempt at diplomacy.”
10. The political branches, not the courts, must engage in foreign policy. “The Court’s interest in foreign-law sources may also be based on a well-intended desire to make the Court look less isolationist. I am not certain that the isolated citation of a foreign decision, usually in the form of dicta, will have much of an effect. But in any event, the Judiciary is not supposed to have a foreign policy independent of the political branches. The political branches, as representatives of the people, are to decide the Nation’s foreign policy, and they can enact positive law based on foreign experiences or laws, which the Court can then interpret.”
11. The power of judicial review is based on the consent of the governed. “We must consider the source of the judiciary’s power to strike down laws as unconstitutional. The Founding Fathers built our Constitution on the radical and profound principle that power has one legitimate source: the consent of the governed…. Reliance on foreign law thus threatens to unmoor the Court from the proper source of its authority for judicial review.”
12. Contemporary community standards must be our own. “Let’s assume that the Supreme Court may properly consider contemporary societal standards to some extent in interpreting the Constitution. Even then, I question how the standards of anyone other than the people of the United States could legitimately be relevant to determining the will of the American people. If we look abroad, whether at expressions of the popular will of foreign nations or the views of foreign jurists or diplomats, in what sense is it credible to say that, in doing so, we are ascertaining the will of the American people? To allow the views of foreign judges and legislators, who are under no oath to uphold the United States Constitution, to govern here is the antithesis of democratic accountability.”
13. The political branches, not the courts, should consider reliance on foreign experiences. “[W]e must use a reliable method for separating the good from the bad. I suggest we do it, as Madison did it, through the political process, not through the courts. A useful example is found in the evolution of the American polling place… State and federal lawmakers responded by adopting the so-called “Australian Ballot” for use in American elections. It has since become a hallmark of American Election Day. Thus, a sensible idea from the other side of the world was weighed and ultimately embraced by our elected representatives, not imposed by the courts. It is one thing for the people’s representatives to consider and adopt laws that draw on the experience of foreign nations. It is quite another for unelected judges, charged with determining the will of the people as they expressed it in the Constitution, to rely on foreign experience as a basis for rejecting the actions of those elected representatives.”
You should read the whole speech. (A more readable reprint is here.) It is worth serious consideration.
UPDATE: You can listen to the speech here. (Tip: Jacco Bomhoff at Comparative Law Blog)
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