Alito Responds to Senator Kyl on Use of Foreign Law: Siding with the Anti-Internationalists?

by Peggy McGuinness

SCOTUSBlog’s live blogging from the Alito hearings includes this exchange between Senator Kyl and Judge Alito on the appropriateness of foreign and international law in U.S. jurisprudence:

12:58: Sen. Kyl asks when it is appropriate to focus on foreign law. Alito says it is not helpful to interpret the constitution. The structure of our government is unique to our country. As for the protection of individual rights, we should look to our own constitution and precedents. It is legitimate to look to foreign law in some situations, i.e. interpretation of a treaty. In such a case, foreign law would not be controlling, but could be “useful to look to.” Sometimes in private litigation, the rule of decision may be governed by foreign law. But generally, it is not helpful to interpret the constitution.

Sounds similar to Chief Justice Roberts’ response to the same line of questioning from Kyl (see the post here.)

I’ll post the transcript excerpt when it is available

Update: Here is the transcript excerpt:

KYL: Thank you. Now, let me now ask you a question that I also asked now-Chief Justice John Roberts. And it’s obvious from my question that I do not support the use of foreign law as authority in United States court opinions. I mentioned to him the 2005 case of Roper v. Simmons, in which the Supreme Court spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Nigeria and China. And I reminded the committee of Justice Breyer’s 1999 dissent from denial of cert in Knight v. Florida, in which he relied on the legal opinions of Zimbabwe, India, Jamaica and Canada in arguing that a delay caused by a convicted murderer’s repeated appeals — appeals brought by the convict — should be considered cruel and unusual punishment.
KYL: I expressed my view that reliance on foreign law is contrary to our constitutional traditions, it undermines democratic self-government and it’s utterly impractical, given the diversity of legal viewpoints worldwide. And would add that it’s needlessly disrespectful of the American people as seen through the widespread public criticism of the trend. Now, with my cards on the table, I turn to you. What is the proper role, in your view, of foreign law in U.S. Supreme Court decisions? And when, if ever, is citation to or reliance on these foreign laws appropriate?

ALITO: I don’t think that foreign law is helpful in interpreting the Constitution. Our Constitution does two basic things. It sets out the structure of our government and it protects fundamental rights. The structure of our government is unique to our country, and so I don’t think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government.

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents.

Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human — in fact, I don’t think there were any that protected human rights the way our Bill of Rights did.

ALITO: We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution.

There are other legal issues that come up in which I think it’s legitimate to look to foreign law. For example, if a question comes up concerning the interpretation of a treaty that’s been entered into by many countries, I don’t see anything wrong with seeing the way the treaty has been interpreted in other countries. I wouldn’t say that that’s controlling, but it’s something that is useful to look to.

In private litigation, it’s often the case — I’ve had cases like this — in which the rule of decision is based on foreign law. There may be a contract between parties and the parties will say, “This contract is to be governed by the laws of New Zealand or wherever.” Of course, there, you have to look to the law of New Zealand or whatever the country is. So there are situations in litigation that come up in federal court when it is legitimate to look to foreign law, but I don’t think it’s helpful in interpreting our Constitution.

3 Responses

  1. I consider myself on the progressive end of using international law in domestic jurisprudence but I think Alito has a point here.

    Human rights based on our constitution should be derived from nowhere but our constitution. It seems that in most cases, international law, or practice, is used as a foil for our own beliefs or prejudices (such as in Lawrence or Roper) but I am not sure it is wise to base an interpretation of the constitution or an expansion of rights solely on international precedent.

    As Roger Alford pointed out in a previous post, the “one way ratchet” approach – using international/ comparative practice to expand but not contract rights – may be appealing from a liberal interpreation of human rights (indeed, it is to me) but it leaves us in a lurch when we try to formulate a doctrine for constitutional interpretation.

    And, of course, as Mr. Alford points out, cherry picking international precedent to support a claim is fine for an advocate but somewhat suspect for a tribunal or court.

  2. Alito’s examples of allowable citation to foreign courts are as non-controversial as anyone can imagine.

    However, the real focus of this issue in the last year was the Court’s citation in two cases in recent years – the juvenile death penalty case and the criminal sodomy case.

    The sodomy case is the easiest to dismiss – in the original case, C.J. Burger cited various foreign laws as evidence that sodomy has always been a criminal offense in Western Civilization. The recent case took that challenge and cited current European laws indicating a change of heart in Western Civ. That was the sole use of foreign citation. The case was in no way “based” on foreign law.

    The juvenile death penalty case required the Court to define the Constitutional prohibition on “cruel and unusual” punishments. Of course, this phrase is a perfect example of a reader-inserted meaning – a true “eye of the beholder” situation, exactly as the Founders intended it to be.

    In part of a search for meaning regarding juvenile executions, the Court thought it useful to examine world-wide opinion on the question of whether executing minors is “unusual.” They found evidence, combined with significant domestic evidence, to say it was.

    To examine foreign views in seeking a definition for “cruel and unusual” is no more avoidable than relying upon a dictionary definition of these “foreign” words, for the English people and the English language are indeed foreign, and no full understanding of this phrase’s roots is attainable without moving off of these American shores.

  3. While jamesaust is correct that the Court “thought it useful to examine world-wide opinion on the question of whether executing minors is ‘unusual.'”

    Unfortunately for the Court, that approach is most definitely not what the Framer’s intended, nor does it make much sense in 2005, as Scalia’s dissent detailed. Countries in the EU have a very liberal view as to what’s cruel and unusual, while countries operating under, say, Sharia law, think nothing of lopping off hands and heads as punishment. The only measure of whether a punishment is unusual, for Constitutional purposes, is whether it’s unusual in the U.S.

    In my opinion, Judge Alito is absolutely correct.

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