Justice Scalia on Foreign Law and the Constitution

by William S. Dodge

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.”


One Response

  1. “[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 by determining to take rank as a state. Italy is another and a later example, and there have been some others in South America, but all these societies…were greatly influenced by the example of the American Federal Union.

    “The doctrines which the United States adopted may be gathered from some very valuable volumes which the American Government has quite recently caused to be published, and to which I will presently call your attention. … You will have to recollect that the question at issue between the English and Americans lawyers was less what is the nature of International Law, and how it arose, than the question how, and to what extent, have its rules become binding on independent states. These questions are often confounded together, or found to be indissoluble, as will be plain from the extracts which I am about to read.”

    “It must be clear to you, I think, that writers who adhere to these opinions are not likely to trouble themselves greatly with the question of the original obligatory force of International Law. If the Law of Nations be binding on states considered as moral beings on account of its derivation from the Law of Nature or of God, states when in a healthy moral condition will defer to them as individual men do to the morality of the Ten Commandments….But now let us turn to the four volumes of the American International Digest edited by Dr. Francis Wharton. It is entitled, “A Digest of the International Law of the United States,” and it consists of documents relating to that subject issued by Presidents and Secretaries of State, of the decisions of Federal Courts, and of the opinions of Attorneys-General. Among the propositions laid down in these volumes you will find the following, all of them accepted by the American Federal Government[:]

    “The law of the United States ought not, if it be avoidable, so to be construed as to infringe on the common principles and usages of nations and the general doctrines of International Law. Even as to municipal matters the law should be so construed as to conform to the Law of Nations, unless the contrary be expressly prescribed. An Act of the Federal Congress ought never to be construed so as to violate the Law of Nations if any other possible construction remains, nor should it be construed to violate neutral rights or to affect neutral commerce, further than is warranted by the Law of Nations as understood in this country.”


    “The Law of Nations is part of the Municipal Law of separate states. The intercourse of the United States with foreign nations and the policy in regard to them being placed by the Constitution in the hands of the Federal Government, its decisions upon these subjects are by universally acknowledged principles of International Law obligatory on everybody. The Law of Nations, unlike foreign Municipal Law, does not have to be proved as a fact. The Law of Nations makes en integral part of the laws of the land. Every nation, on being received at her own request into the circle of civilised government, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws, and usages which have obtained currency amongst civilised states, and which have for their object the mitigation of the miseries of war. International Law is founded upon natural reason and justice, the opinions of writers of known wisdom, and the practice of civilised nations.”

    “Here you see that according to American doctrine International Law has precedence both of Federal and of Municipal Law, unless in the exceptional case where Federal Law has deliberately departed from it. It is regarded by the American lawyers as having very much the same relation to Federal and State Law as the Federal Constitution has, and this no doubt is the reason why in so many famous American law books Constitutional Law and International Law are the first subjects discussed, International Law on the whole having precedence of Constitutional Law.

    “The principle on which these American doctrines of International Law repose is, I think, tolerably plain. The statesmen and jurists of the United States do not regard International Law as having become binding on their country through the intervention of any legislature. They do not believe it to be of the nature of immemorial usage, ‘of which the memory of man runneth not to the contrary.’ They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilised nations. This view, though not quite explicitly set forth, does not really differ from that entertained by the founders of International Law, [e.g., Grotius, Vatel] and it is practically that submitted to, and assumed to be a sufficiently solid basis for further inferences, by Governments and lawyers of the civilised sovereign communities of our day. If they put it in another way it would probably be that the state which disclaims the authority of International Law places herself outside the circle of civilised nations.”

    Henry Maine, International Law, Lecture II: Its Authority and Sanction, (1888)

    available at The Avalon Project


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