19 Mar Transcript in Morse v. Frederick
The transcript of Morse v. Frederick is now available here. No surprise, there was no mention whatsoever of comparative experiences.
Although my faux oral argument in the previous post was of course a parody, the justices’ remarks I quoted do come quite close to actual statements that they have made in other contexts, either in judicial opinions or speeches. Justice Ginsburg has said in her ASIL speech we should look abroad for common denominators of fairness regarding the relationship between the governors and the governed. Justice Breyer’s comments about helping fledging democracies by citing them more is here. Justice Kennedy’s quotes come from sections of Lawrence and Roper. Justice Alito’s comments are paraphrases of his testimony during his confirmation hearing. Justice Scalia’s comments are derived from his dissents in Roper and Lawrence.
As for Marko’s comment that the First Amendment is different, I think he may be right in some instances. America is different, especially with respect to the religion clauses (see O’Connor’s concurrence in McCreary). But Justice Breyer has said that he thinks we should look to European experiences in a religion case such as the Zelman school voucher case (see here). And the Court has looked abroad in the free speech case of Burson (involving a “campaign-free zone” around the voting booth). I have yet to read someone arguing that certain constitutional rights are a proper subject for comparativism and others are not based on American exceptionalism and then make a good case for which rights fall into one category or the other.
Perhaps the justices who support comparativism will someday explain why they think it is appropriate in some contexts but inappropriate in others. As it now stands, it comes off to me, in the words of Chief Justice Roberts at his confirmation hearing, as simply “expand[ing] the discretion of the judge” because it allows the judge to “incorporate his or her own personal preferences, cloak them with the authority of precedent—because they’re finding precedent in foreign law—and use that to determine the meaning of the Constitution.”
Roger, Don’t forget Justice Scalia! He also used comparative experiences, at least in one instance, to distinguish the French from the American model of the relationship between church and state: That is one model of the relationship between church and state – a model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins “France is [a] … secular … Republic.” France Const., Art. 1 … Religion is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America. McCreary County v. ACLU, 125 S. Ct. 2722 (2005) And I completely agree with you that when it comes to the Establishment clause, ie the relationship between church and state, it is rather useless to look at other models, as almost every country in the world has a different one. In the UK, the Queen is the Head of the Church; in Germany, the state collects billions in church tax every year which it gives to protestant and catholic churches; in France, total secularism reigns, and there is indeed a wall of separation between church and state. It might be different for the Free Exercise clause,… Read more »
Bloggers, relying on the differing constitutional provisions/ constitutional experiences of different jurisdictions to explain why comparative analysis is not appropriate for certain topics raises an interesting question, namely, what is the implication of this distinction? Are human rights not in fact applicable at the global level but rather a form of citizens rights, coterminous with national borders. Such a positivist viewpoint seems hard to reconcile with most human rigths talk and scholarship. For example, freedom of speech/expression gets its power and its intellectual backing from universal theories such as the marketplace of ideas and the harm principle. With this common conceptual core to the right, it seems incongruous to then eschew any comparisons from other jurisdictions simply on the basis that differing provisions rule the application of the right. Given the common law penchant for finding lines of reason running through cases in order to construct new legal tests, it in fact seems that analysing the experiences of diverse jurisdictions with similar constitutional rights would be a commendable, if arduous, way to search for the principles underlying and thus forming the right in question, be it freedom of expression or any other right. And at very least the effort forces… Read more »