When Does Justice Scalia Love International and Foreign Laws?

by Duncan Hollis

I recently finished teaching Hartford Fire again. And it got me pondering Justice Scalia’s curious attitudes towards international and foreign law. Scalia’s hostility to the use of foreign legal norms in interpreting the U.S. Constitution is well-established. As far back as Thompson v. Oklahoma in 1988 we see Scalia critique

“The plurality’s reliance upon Amnesty International’s account of what it pronounces to be civilized standards of decency in other countries” as “totally inappropriate as a means of establishing the fundamental beliefs of this Nation. . . . We must never forget that it is a Constitution for the United States of America that we are expounding. . . . [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.”

He’s flogged that view even more vociferously of late in response to other Justices who have found the use of foreign legal sources in interpreting the Constitution alluring. He relied on it extensively in his 2004 address to the American Society of International Law, in debating Justice Breyer in 2005, and again in his 2006 Keynote Address to the American Enterprise Institute. In Lawrence v. Texas he wrote that “constitutional entitlements do not spring into existence … because foreign nations decriminalize conduct.” More recently, in Sosa v. Alvarez-Machain Scalia railed against the internationalist position: “The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory, is a 20th–century invention of internationalist law professors and human-rights advocates.”

And, yet, there’s Hartford Fire to consider. In assessing the reach of the Sherman Antitrust Act, it’s Scalia who critiques his colleagues for not being more deferential to international law and foreign legal regimes: i.e., “statutes should not be interpreted to regulate foreign persons or conduct if that regulation would conflict with principles of international law” and “the scope of generally worded statutes must be construed in light of international law in other areas as well.” You might think it’s an anomaly—a one-time exception to his more recent pronounced hostility to foreign and international law? You’d be wrong. In his Olympic Airways dissent, Scalia criticizes the majority for “its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us.” More recently in 2005, in Spector v. Norwegian Cruise Line, Ltd., Scalia’s dissent would have had the Americans with Disabilities Act (ADA) construed consistent with the “rule of international law that the law of the flag ship ordinarily governs the internal affairs of a ship,” which he viewed as a rule that “sought to avoid conflict with the laws of the ship’s flag state, the laws of other nations and international obligations to which the vessels are subject.” Indeed, in that case, Scalia reaffirmed his Hartford Fire dissent by arguing that even the possibility of a conflict with foreign or international law should constrain the reach of the ADA.

I’m fascinated by this (and I’m not the only one—check out Melissa Waters’ earlier symposium essay on the topic or Roger’s lengthier treatment of it here). How can Justice Scalia so strenuously object to Constitutional law interpretations that invoke foreign or international legal norms, but at the same time insist that courts do not pay enough attention to those very same sources when it comes to interpreting the scope of U.S. statutes?

Perhaps the answer lies in the doctrine. After all, the Constitution and statutes constitute two different sources of law. The Constitution serves as a “formal” source of law (i.e., a law for making laws) – laying out the substantive and procedural limits on government conduct with a corresponding hierarchical superiority over all other “law” (at least within the U.S. legal system). Statutes, in contrast, are rules of general application that emerge from constitutional processes and must be read with other rules given equal weight (e.g., treaties) or recognized as law (e.g., customary international law). Indeed, Justice Scalia has emphasized that in interpreting treaties he’s especially amenable to using foreign judicial decisions since, unlike the Constitution, those courts are interpreting the same legal norm that binds the United States. So, perhaps we can explain Justice Scalia’s mixed views on foreign and international legal norms as a function of the doctrinal context in which they apply – i.e., required for statutes, prohibited for the Constitution.

Although the doctrinal explanation may be accurate, I’d like to suggest an alternative vision of Justice Scalia’s love/hate relationship with foreign and international laws. Thinking in more legal realist terms, it appears that Justice Scalia disfavors the use of international or foreign law whenever it would be rights-enhancing; i.e., whenever the Court would (or does) use foreign or international legal norms to afford individuals additional rights or liberties not previously recognized as a matter of U.S. law. In contrast, Justice Scalia appears to favor the use of foreign and legal materials whenever they are pro-business; i.e., whenever the application of those foreign or international laws would limit the liability of businesses or exclude the application of regulations or other legal norms. Thus, in Thompson, Lawrence , and Sosa, Justice Scalia disfavors applications of international and foreign law norms that would have afforded individual criminal defendants additional rights or liberties. But, in Hartford Fire, Olympic Airways, and Spector, Scalia’s seeking to apply international or foreign law to preclude applying the restrictions of the Sherman Antitrust Act, the Warsaw Convention’s liability regime, and the ADA to business interests.

This seems to suggest Justice Scalia likes international and foreign laws when they favor industrial interests, but dislikes them when they favor individual interests. Obviously, we could have a normative discussion of whether that’s a good approach. For the moment, though, I’m interested in whether my analysis holds up descriptively. Is it convincing, or does the more traditional doctrinal distinction carry greater weight? Or, perhaps there’s another unarticulated explanation for Justice Scalia’s views?

Chief Justice Roberts and Justice Alito expressed their own disdain for using international and foreign law in the constitutional context in their confirmation hearings and other justices have expressed similar hostility (e.g., Thomas). Thus, I’d think it’s important to explain Justice Scalia’s overarching method here in order to appreciate whether it will have wider appeal within the Court in the future. At the same time, if my description holds I’d expect it diminishes some of the force in Justice Scalia’s own arguments against using international and foreign law in constitutional interpretation because he believes that they are deployed primarily to support whatever outcome the invoking justice seeks to achieve. Is that any different though than Justice Scalia’s own track record on when he employs international and foreign law in statutory interpretation questions? Obviously, I’m working with a pretty small sample here, so I’d be interested in whether I’m missing something in these cases, or if there are additional opinions that add to the question of when does Justice Scalia love international and foreign law.

[Opinio Juris intern Louis Froelich provided able research assistance for this post]


9 Responses

  1. I am unpersuaded by your “realist” vision, and I don’t see how you can seriously consider it given the cases you cited. According to Scalia, foreign law does not illuminate the US Constitution. However, when interpreting statutes that actually affect international commerce, deferring to international law is a good idea.

    That philosophy seems consistent to me–why cast it as something else that seems more sinister, when the Justice’s own words are nothing of the sort?

  2. Not trying to be original here (pun intended), but individuals against their sovereigns asserting a basis in the law of nations is not a 20th century phenomenon. I vaguely remember remember the “We hold these truths to be self-evident…” language taking a basis in natural law back in the 18th century. Also in the religious vision of international law there was the idea of humans being subjects to some extent of international law going back at least to the 17th century (discussed in the Henkin casebook). So Scalia I believe has it wrong as a historical matter.



  3. Jack — Thanks for your comments. It certainly was not my intent to be “sinister” in any way. Rather, I am offering an alternative method for understanding (and predicting) Justice Scalia’s views on the relevance of international and foreign law to deciding cases (that’s not to say we couldn’t debate if his method is a good one–we certainly could–it’s just my aim was more modest in simply trying to illuminate a different predictive model than the doctrine might suggest). I’d agree with you that Justice Scalia has to date suggested foreign law is irrelevant in constitutional questions. But, so far as I can tell, he’s not limited his description of when international and foreign law matter in statutory interpretation to cases affecting international commerce; rather, he’s offerred more sweeping statements about the need to read U.S. statutes consistent with U.S. obligations under international law or consonant with foreign states’ own laws or decisions. That might suggest he would always invoke international and foreign law in interpreting otherwise ambiguous U.S. statutes. What I’m suggesting is that, looking at his opinions to date, that’s not a necessary or foregone conclusion. Would Justice Scalia, for example, accept the use of international human rights law or foreign law approaches to definitions of “disability” in the ADA–the same statute he said had to be read consistent with international law rules that would limit its application to foreign flagged vessels? I’m guessing he would not. A harder question, I suspect, is whether he’d be willing to incorporate international or foreign law into a constitutional question that had nothing to do with individual rights, but would have commercial implications (say, for example, the scope of the court’s admiralty or maritime jurisdiction where what other states have considered as falling within those categories might be relevant to what the US courts can do?).

  4. Duncan, I’ve thought about this too, and I think you’re right. I wonder if it’s even more simple, though. As a political conservative, Scalia believes that in general, that government is best which governs least. When international law gives a reason for reining in the federal government’s powers, then he cites it for that purpose. When it’s used to increase the scope, he’s against it.

    I think the most infamous example of Scalia’s citation of foreign authority to justify his preferred outcome came not in a published decision, but in a 2004 Q and A at Michigan Law School, when he answered a question about Bush v Gore by saying, “The only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world.”

  5. Duncan,

    I think that Scalia’s approach can be read as a faithful and consistent application of the same basic interpretive techniques. Originalism explains both rejection of international sources in constitutional interpretation and his embrace of it in treaty and statutory interpretation.

    Whether interpreting a constitution, treaty or statute, Justice Scalia seeks to understand original meaning. Accordingly, in interpreting a modern treaty in Olympic Airways, Justice Scalia will not hesitate to examine contemporary judicial decisions in Britain and Australia because, in his view, “[f]oreign constructions are evidence of the original shared understanding of the contracting parties.” Likewise, in the constitutional context, he borrows from foreign historical sources to discern original meaning. If one focuses on discernment of original meaning, Justice Scalia’s antipathy for contemporary comparativism in one context and affinity for it in another is perfectly logical.

    Scalia’s approach in Hartford Fire is based on a version of originalism, but he is relying on congressional presumptions against extraterritoriality and violations of international obligations (i.e., Charming Betsy). His invocation of Charming Betsy in Hartford Fire also reflects a concern about separation of powers and not wanting to presume that the legislative branch would inadvertently pass a statute that could be (but need not be) interpreted to conflict with executive authority to avoid international discord resulting from violations of international law. I think the same could be said of Scalia’s understanding of the clear statement rule in Spector: wanting to avoid interpretations of congressional action that may result in conflicts with international obligations is a way of avoiding inadvertent legislative encroachment on executive authority.

    It is also worth noting that in the other major antitrust case of recent, Hoffman-LaRoche v. Empagran, Scalia filed a one sentence concurrence stating, “I concur in the judgment of the Court because the language of the statute is readily susceptible of the interpretation the Court provides and because only that interpretation is consistent with the principle that statutes should be read in accord with the customary deference to the application of foreign countries’ laws within their own territories.” This seems to reflect concern about interpretations that would lead to inadvertent violations of international law principles of prescriptive jurisdiction.

    I also question your “business interest” argument as applied to Hartford Fire. Many, if not most antitrust lawyers say robust enforcement of antitrust laws is pro-consumer and pro-business. What Scalia did in Hartford Fire was try to limit the reach of U.S. antitrust laws to foreign conduct by foreign corporations, an approach that would harm competition in the United States.

    Roger Alford

  6. I’m not sure how necessary it is to read ideology into Scalia’s mixed bag on looking to international norms in U.S. law; in at least some of those cases, there’s other factors to consider. I’ll take one case from each side to give an example.

    Spector – the primacy of flag-state jurisdiction is a relatively undisputed principle of international law. I believe that the current version of UNCLOS, to which the US is not (yet) a signatory admittedly, makes it pretty clear that this amounts to CIL. Regardless, the principle has popped up all over the place elsewhere, going back to the early part of last century with the Lotus case in the PCIJ. Subsequent decisions make it clear that most would side with the (losing) French claim of flag-state in that case. At the very least, Lotus and other developments would make concurrent jurisdiction a minimum, with a preference for flag-state. Its not US law, but its a relatively well supported and non-controversial international norm, with no good reason to depart from.

    Sosa – Even human rights advocates (and I take this from talking with attorneys who have used it successfully) aren’t really sure exactly what the ATS means or does. You can use the rights-limiting analysis, sure, but let’s put this in context. You have the above named factor to start with, and both the majority and Scalia’s dissent reflect different concerns about how to treat it. The majority would find a tort in violation of the law of nations only under very strict circumstances, and even then, apply a balancing test before deciding to incorporate it into US law… and even then, they decide an illegal kidnapping and overnight arbitrary detention don’t qualify! Scalia would limit it to the three (i.e. piracy, safe passage, diplomats) that we know for certain the Founders recognized. Individual preferences aside, its an entirely reasonable position and I’m not sure ideology should enter the conversation here.

    To take an example you didn’t name, Scalia’s dissent from Roper v. Simmons. He may take a hard-line to looking at international sources here, but there are some significant federalism issues at play in the case. I view his opinion as resting on those grounds, rather than a prima facie reluctance to look at international norms.

    Of course, I’m arguing against your reading between the lines by doing some of my own. Personally, I’m a big fan of incorporating more international law into the US, but Scalia has a valid base for his stances in at least some of those cases.

  7. I think we should be careful not to continuously look for hidden ideology in the opinions of the justices. This strain of “scholarly” legal analysis is perhaps the most detrimental to respect for the rule of law. Suggesting or theorizing that hidden personal preferences, agendas or political ideologies control judicial decisions or opinions undermines their authority.

    Scalia’s approach to international law seems doctrinally principled – whether you agree with that doctrine or not. One might want to point to circumstances where he seemingly failed to follow his established doctrine and attempt to analyze why that might be (rather than merely speculate unprincipled reasons, such as “hostility” to “rights-enhancing” international law). That’s fine. (And thank you Roger Alford for providing a ready example of how to engage in such analysis.)

    As Roger makes clear, the fact that Scalia believes only U.S. values matter in determining the scope of constitutional protections should be unsurprising. Intellectuals may bemoan our country’s lack of progressive thought as compared to other nations. They may be reluctant to accept that they are in the minority when it comes to general U.S. public perceptions of “right” and “wrong” or permissible conduct. Until the U.S. public accepts that our domestic constitutional law should keep pace with foreign or international norms, it is hard to justify using those norms as a source of principled constitutional interpretation or analysis – even under a progressive view of individual rights.

    Likewise, the fact that Scalia believes that international law must be considered in circumstances where it is clearly relevant is also not surprising or controversial. This does not reflect a “love/hate relationship”, merely a sense of “appropriate/inappropriate applicability” to a case before the court.

    As to Ben’s insightful comment, I hasten to add that contemporary foreign and international laws do not claim natural law origins in most cases. As Roger again cogently points out, where they do relate to original meaning of the Constitution, a statute, or a treaty, Scalia will consider them in their historical or contemporary context.

    While realist thought has its place, I think scholars of the law (rather than politics) should avoid resorting to it in every conceivable circumstance. It may be unavoidable in certain circumstances, formation and compliance with the law comes to mind. However, we should remember that realism tends to undermine the very subject of our study.

  8. The alternative vision makes a great deal of sense in light of Scalia’s votes in Morse v. Frederick and F.E.C. v. Wisconsin Right to Life this past term: Restrictions on freedom of speech shall be strictly construed when applied to corporations. Restrictions on the speech of students? Not so much.

  9. It is not so clear to me that Scalia is an originalist when it comes to using international law for construing the Constitution. (I am not even sure if Scalia still considers himself an originalist. See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989) (embracing “faint-hearted originalism” with a “trace of constitutional perfectionism”).) In Chisholm v. Georgia (1793), both concurring and dissenting opinion did consider the law of nations in construing Article III diversity jurisdiction in suits against states. Both Iredell (dissenting) and Wilson (concurring) thought that the law of nations would apply – if there had been any applicable law of nations norm to apply. According to Iredell and Wilson, there was none (although I think that they may have been wrong in light of the Aulic Council’s jurisprudence).

    Indeed come to think of it, SCOTUS appears to have often — if not always — used the law of nations as the controlling rules of decision when construing its Article III original jurisdictional authority in cases in which states were parties and those involving ambassadors, and admiralty cases. A national court that embraced a strictly dualist constitutional perspective would have merely dismissed those cases, in which there was no legislation implementing the nation’s international legal obligations, for failure to state a judicable claim. SCOTUS did not do this because SCOTUS is a hybrid international-interstate-national tribunal that has the international legal authority and duty to apply international law. For more on the federal courts being international courts, see Martin, The Constitution as Treaty (Cambridge Univ. Press 2007).

    Putting aside the earliest SCOTUS decisions providing constitutional construction in conformity with international law, the Constitution itself incorporated many international legal principles (e.g., continuity of treaty obligations, comity, territorial inviolability, state co-equality). Wouldn’t it make sense for a federal court to use the U.S.’ international legal obligations in construing the meaning of these provisions?

    Francisco Forrest Martin

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