15 Jul Maybe Sotomayor Really is a Closet Sovereigntist!
My current take on Sotomayor testimony is that there is an odd discontinuity between her public speeches and articles on the one hand, and her testimony yesterday, and, to some greater degree, her record as a judge on the other. One interesting example is that old chestnut: Should a U.S. judge use international or foreign law to interpret the Constitution? Although my own early reading of her cases suggested that she had little interest in this method, others have pointed to this speech (video at link) from April (of this year!) where she approvingly discusses Lawrence and Roper and other transnationalist/constitutional decisions. Here’s a quote from that speech in an unofficial transcript by Ed Whelan at Bench Memos:
Similarly in a recent case, Lawrence versus Texas, the Supreme Court overturned a Texas state law making it a crime for two people of the same sex to engage in certain intimate sexual acts, and the Justice referred to the repeal of such laws in many, many states and in many countries of the world. In both those cases, the courts were very, very careful to note that they weren’t using that law to decide the American question, they were just using that law to help us understand what the concepts meant to other countries and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking. There may well be times where we disagree with the mainstream of international law, but there is much ambiguity involved. And I for one believe that if you look at the ideas of everyone and consider them and test them, test the force of their persuasiveness, look at them carefully, examine where they are coming from and why, that your own decision will be better informed.
Today, she makes clear that none of this means that she believes foreign or international law should be used to interpret the Constitution. In fact, she seems to flatly reject this as not “permitted”, and even goes so far as to say that “there’s no issue about this question“. (emphasis added)
American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given. And my speech explained that, as you noted, explicitly. There is no debate on that question; there’s no issue about that question.
Not permitted? Eat your heart out, Peter Spiro! In any event, she then explains that her speech was really about how foreign and international law is really like using any outside source, like law review articles or other sources, to build up one’s knowledge as a judge, and that helps you make a decision as a judge. But it is not binding law.
I don’t really know what to make of this. I am guessing she is simply saying it is not binding precedent, but it could be persuasive precedent? If that is right, than her statement: “American law does not permit the use of foreign law or international law to interpret the Constitution” is misleading. Or maybe she’s had a change of heart and she has decided to join with Justices Scalia and Thomas in the “sovereigntist” caucus!
Here’s one thing to take away, though. It is still not kosher, even for a Democratic nominee to a Senate with 60 Democratic senators, to explicitly or even implicitly endorse the use of international or foreign law to interpret the Constitution. So perhaps constitutional sovereigntism is quite so dead!
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Maybe she is just a sensible lawyer. I wonder if you guys realise how incredibly miniscule is the minority of lawyers who do think that foreign law can be used to interpret the Constitution. Merely by first-principles consideration of foreign law it will become irrelevant to Constitutional questions in almost every single case, and very quickly. The underlying facts, most notable of which in Constitutional cases is the history of the country itself, are generally so divergent as to alone render the foreign judgement barely relevant, let alone possibly persuasive. I don’t believe that this is a peculiarly ‘American’, or even an ‘Anglo’, view, although I could be wrong there. I have never come across eg a French Constitutional decision that relied on foreign legal sources. Where it does seem to come up is in very ‘activist’ courts such as the Canadian or Indian Supreme Courts, but even then to my recollection it is usually presented more as ‘by the way this little peice of radical Constitutional surgery is a completely normal and routine procedure – everyone does it’ than persuasive support. South Africa is obviously slightly different, and India seems to take a different approach, but is there really any… Read more »
I’ve always found this American discussion truly fascinating. When I studied in Ireland, I was pleasantly surprised to see Irish and English courts citing cases from all over the common law. No civil law court would ever dream of such a thing.
As far as I can tell, not even the otherwise very scholarly ruling by the German Constitutional Court in the Lisbon Treaty case does that, though they do cite some literature. (The link is to the English version of the ruling.)
As for the exact quote, I think when Sotomayor talks about “the use of foreign law to interpret the constitution”, she’s talking about using it as binding precedent, meaning that she is right saying that this is a non-issue.
“American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given. And my speech explained that, as you noted, explicitly. There is no debate on that question; there’s no issue about that question.” Of course for those who consider international law forms part of American law (you know the pesky treaties we signed on to as well as that pesky customary international law American courts have been braying about since the founders) to say that it is not permitted to use foreign law or international law to interpret the Constitution sounds really weird. The circular logic seems to require the foreign law or international law to not be part of the system. But then, 1854 Hadley v Baxendale (Gloucester case) – fundamental case throughout the Commonwealth on foreseeability in damages. Happily adopted in torts and contracts as the foreseeability rule. Clearly, Hadley was foreign law and the principle of it was made precedent by our courts. Now, I understand the borrowing from abroad in contract, but why does it magically become different when it is constitutional law. I mean we are not the only country with a constitution, with citizens with… Read more »
Ben,
Your point about treaties is irrelevant to her statement that “American law does not permit the use of foreign law or international law to interpret the Constitution.”
Treaties are the functional equivalent to statutes. In your world, are statutes looked to in order to interpret the Constitution? I don’t think so.
There is nothing wierd or circular about her remark. You are simply wrong.
‘but why does it magically become different when it is constitutional law. I mean we are not the only country with a constitution, with citizens with issues like the ones we have.’
The law of contracts is a reasonably straightforward thing. It deals with agreements between discrete parties. What is more, American (and Australian and Canadian and Kenyan and Indian and New Zealandish) contract law derives much of its substance from British contract law. The Constitution however represents, necessarily, a substantial break from British law. It still rests upon foundations of British law pre-1776 British legal development is certainly relevant to interpreting the Constitution.
But it is extremely difficult to see how what a British court does now, 200+ years of diverging legal and political development later, affects how Americans should interpret their Constitution.
Most of all, though, the silliness lies in considering this an ‘American’ anything, let alone exceptionalism! As Martin Holtermann points out, this is only American ordinariness at its best.
As for why the framework becomes the democracy, well, that sounds like a passing fair definition of the rule of law.