22 Feb Justice Scalia on Foreign Law and the Constitution
In a speech at the American Enterprise Institute on Tuesday, Justice Scalia took aim once again at the use of foreign law to interpret the Constitution. While freely admitting that 18th Century English law is relevant to that exercise, he denied that modern foreign legal materials ever are. And in response to a question from Professor Julian Ku, he extended his position to reject the relevance of international law as well.
As he did at the 2004 annual meeting of the American Society of International Law, Justice Scalia pointed out that foreign law is often invoked selectively. Yes, a great many nations do not allow the execution of minors, but a great many also criminalize abortion. Scalia also linked the use of foreign legal materials to what he called the “living Constitution paradigm.” Invoking Justice Holmes, he characterized the law of international human rights as the new “brooding omnipresence in the sky,” portending a return to what Scalia called the “bad old days before Erie.”
During a panel discussion that followed Justice Scalia’s speech, Tom Goldstein (SCOTUSblog) suggested that the current debate over the use of foreign law is a proxy for the debate over originalism. Breyer and other believers in the “living Constitution” are willing to look to foreign materials to help them fashion solutions for modern problems, while Scalia rejects such materials because he believes that all the answers must be found in the original understanding.
If Goldstein is right, a curious thing about this debate is that rejection of foreign and international law is associated with originalism. The “bad old days before Erie” included the 18th Century world of the Framers. They believed in a “brooding omnipresence in the sky” called the general common law, of which the law of nations was a part. The original understanding was that this law of nations was part of U.S. law in myriad ways, and as Professor Sarah Cleveland has shown in her thoroughly researched article “Our International Constitution”, the use of international law to interpret the Constitution stretches back to the Marshall Court.
Perhaps, then, it is really Justice Breyer who is being faithful to the original understanding of foreign and international law’s place in our constitutional system and its relevance to constitutional interpretation and Justice Scalia whose break with that tradition represents–dare I say it–“living Constitutionalism.”
“[A] curious thing about this debate is that rejection of foreign and international law is associated with originalism. The ‘bad old days before Erie’ included the 18th Century world of the Framers. They believed in a ‘brooding omnipresence in the sky’ called the general common law, of which the law of nations was a part. The original understanding was that this law of nations was part of U.S. law in myriad ways[.]” Sir Henry Maine (1822-1888), renowned British lawyer and legal scholar, would agree. “In order that you may convince yourselves what might be the consequences of demanding a legislative sanction, or a sanction derived from an authority on a level with that of a modern legislature, for the rules of International Law, I recommend you to compare the view of it taken by the statesmen and jurists of the United States of America with that to which this country might have committed itself; and from which it was delivered by the direct intervention of Parliament. The United States are particularly worth examining in regard to the point before us, because they were an instance of a new nation deliberately setting itself to consider th[e] new obligations it had incurred… Read more »