Justice Scalia on the Role of Foreign Authority

• Foreign law is relevant in the interpretation of treaties (Real Player, 2nd minute)
• Foreign law is relevant to the meaning of a statute, or where the issue for resolution depends on an understanding of foreign law (3rd minute)
• Foreign law is relevant to rebut “sky is falling” arguments regarding a proposed practice where that practice has been successfully adopted in other jurisdictions (5th minute)
• “Old” foreign law is relevant to understand the original meaning of the Constitution. (6th minute)
• Modern foreign legal materials are never relevant and occasionally (i.e., Printz) the Court has adopted this approach (7th minute)
• The Court has increasingly relied on foreign law in Eighth Amendment jurisprudence (9th minute)
• Recently the Court has expanded the reliance on foreign law beyond the Eighth Amendment as in the case of Lawrence v. Texas (11th minute)
• Use of foreign law will continue at an accelerated pace because of (1) living constitutionalism (12th minute); (2) “because it is there” and the Court needs analytical tools for philosophical conclusions (18th minute); and (3) foreign authority increases the scope of judicial discretion, not unlike the use of legislative history (21st minute)
• “One who believes that it falls to the courts to update the list of rights guaranteed by the Constitution tends to be one who believes in a platonic right and wrong in these matters which wise judges are able to discern when the people at large cannot.” (14th minute)
• “This notion of an overarching moral law that is binding upon all of the nations of the world and that judges of all the nations of the world are charged with interpreting has replaced the [pre-Erie] common law.” (15th minute)
• Human rights law is the new brooding omnipresence in the sky. (16th minute)
• The Court has selectively chosen when to use foreign law. Abortion law does not reference foreign authority. “I will become a believer in the ingenuousness, though never in the propriety of the Court’s newfound respect for the wisdom of foreign minds when it applies that wisdom in the abortion cases.” (22nd minute)
• Founders did not aspire to emulate Europeans (24th minute)
• Civil law countries have adopted practices very different from our own (25th minute)
• “Few of us would want our life or liberty subject to the disposition of French or Italian criminal justice, not because those systems are unjust, but because we think ours is better. What reason is there to believe that other dispositions are so obviously suitable to the morals and manners of our people that they can be judicially imposed through constitutional adjudication.” (27th minute)

As reported here and here, the question period was disrupted by hecklers and protesters. There were a few serious questions, and they included the following exchanges:

• Q. (Bill Dodge, Hastings) “The Framers believed there was a brooding omnipresence in the sky, it was called natural law, it lay behind the general common law and the law of nations. By saying that it is no longer valid as a source after Erie, aren’t you being anti-originalist or worse yet, a living constitutionalist?” A: I believe in natural law, but the issue is whether the people or the courts adhere to it and adopt it. It isn’t a fight of natural law people vs. non-natural law people, but who enacts it. (29th minute)
• Q. (Julian Ku, Hofstra, Opinio Juris) Do you make a distinction between international and foreign law? When you say foreign authority do you mean both international law and the domestic law of foreign countries? A. Yes, except for international law to which we have subscribed. (40th minute)
• Q. (Tom Goldstein, Goldstein & Howe, SCOTUSblog) Minimum levels of rationality are included in the Constitution. What are your thoughts of looking to the experiences of other countries that have considered similar questions on issues such as irrational discrimination under the 14th Amendment? A. No, I don’t think there is much difference between a foreign court saying something is stupid and it saying that it is really stupid. My decision should be based on our text and our traditions. (41st minute)
• Q. (Michael Greve, AEI): The biggest supporters of international law in cases where you don’t like it are also the biggest opponents of using international law where you would use it (such as interpreting the Warsaw Convention or determining whether the European Commission is a tribunal). Can you speculate why international law aficionados’ enthusiasm wanes in such cases? A. I’m not sure it breaks out quite that cleanly. I don’t think there is any correlation. (47th minute)