Alito: "Framers Would Be Stunned"

COBURN: …Article III, Section 2 really delineates the scope for the courts in this country. And what it says is “all cases in law and equity arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority.” So that really gives us the scope under Article III, Section 2. And I was interested in Senator Kyl asked you yesterday about foreign law, something that is extremely disturbing to a lot of Americans; that many on the Supreme Court today will reference or pick and choose the foreign law that they want to use to help them make a decision to interpret our Constitution, where, in fact, the oath of office mentions no foreign law.

COBURN: As a matter of fact, the obligation is to use the United States law, the Constitution and the treaties. And that’s exactly what Article III, Section 2, says. And so there’s no reference at all to foreign law in terms of your obligations or your responsibility. And a matter of fact, the absence of it would say that, “Maybe this ought to be what we use and the codified law of the Congress and the treaties rather than foreign law.” So the question I have for you, and I couldn’t get Judge Roberts to answer it because of the conflict that might occur afterwards, but I have the feeling that the vast majority of Americans don’t think it is proper for the Supreme Court to use foreign law. And I personally believe that that’s an indication of not good behavior by a justice, whether it be a justice at an appellate division or a magistrate or a Supreme Court justice. And I just wondered if you had any comments on that comment.

ALITO: Well, I don’t think that we should look to foreign law to interpret our own Constitution. I agree with you that the laws of the United States consist of the Constitution and treaties and laws and, I would add, regulations that are promulgated in accordance with law. And I don’t think that it’s appropriate or useful to look to foreign law in interpreting the provisions of our Constitution. I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world.

ALITO: The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time. They wanted them to have the rights of Americans. And I think we should interpret our Constitution — we should interpret our Constitution. And I don’t think it’s appropriate to look to foreign law. I think that it presents a host of practical problems that have been pointed out. You have to decide which countries you are going to survey. And then it’s often difficult to understand exactly what you are to make of foreign court decisions. All countries don’t set up their court systems the same way. Foreign courts may have greater authority than the courts of the United States. They may be given a policy-making role. And, therefore, it would be more appropriate for them to weigh in on policy issues. When our Constitution was being debated, there was a serious proposal to have members of the judiciary sit on a council of revision, where they would have a policy-making role before legislation was passed. And other countries can set up their judiciary in that way. So you’d have to understand the jurisdiction and the authority of the foreign courts. And then sometimes it’s misleading to look to just one narrow provision of foreign law without considering the larger body of law in which it’s located. If you focus too narrowly on that, you may distort the big picture. So for all those reasons, I just don’t think that’s a useful thing to do.