18 Jul McGinnis and Rosenkranz on Constitutional Comparativism at Sotomayor Hearing
John McGinnis and Nicholas Rosenkranz testified last week on the role of foreign and international law to interpret the Constitution. The full transcript of their testimony is here.
At the end of his testimony, Rosenkranz raises a point that I think is often neglected in the discussion of constitutional comparativism: the deliberate attempt by other countries to impact our own jurisprudence. Here is what Rosenkranz says:
When the Supreme Court declares that the Constitution evolves and it declares further that foreign law may affect its evolution, it is declaring nothing less than the power of foreign governments to change the meaning of the United States Constitution….
France, for example, has declared that one of its priorities is the abolition of capital punishment in the United States, yet surely the American people would rebel at the thought of the French parliament deciding whether to abolish the death penalty, not just in France, but thereby in America.
After all, foreign control over American law was a primary grievance of the Declaration of Independence. It, too, may be found at the National Archives, and its most resonant protest was that King George III had subjected us to a jurisdiction foreign to our Constitution.
This is exactly what is at stake here: foreign government control over the meaning of our Constitution. Any such control, even at the margin, is inconsistent with our basic founding principles of democracy and self-governance.
Rosenkranz’s comments echo what I have said (see here and here) about George Washington’s suspicions of foreign attempts to influence our polity. Here is what Washington said in his Farewell Address:
“…The nation which indulges towards another … a habitual fondness is in some degree a slave… A passionate attachment of one nation for another produces a variety of evils…. [I]it gives to ambitious, corrupted, or deluded citizens … facility to betray or sacrifice the interests of their own country … gilding, with the appearances of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation. As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils… Against the insidious wiles of foreign influence … the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government….”
Constitutional comparativism rarely is considered from the angle of foreign attempts to influence the development of domestic values. They cannot, for example, stop the death penalty through the ballot box, so they try to do so by other means. Lacking any democratic mechanism to influence the political branches, does anyone seriously doubt that foreigners are attempting to rely on constitutional interpretation to undermine domestic preferences?
It could be my naivete, but I strongly suspect that when the French parliament say they’d like to work towards the abolition of the death penalty in the US, they have lobbying and other PR in mind, not any direct strategy through the courts.
I would not preclude a direct strategy through the courts. The state of Italy (as represented specifically by the Senate of the Italian Republic) gained intervenor status before Canada’s highest court concerning a challenge to extradition from Canada to a death penalty state:
Burns v. United States
http://scc.lexum.umontreal.ca/en/2001/2001scc7/2001scc7.html
@Joanna Harrington: Cool! How did they manage that? Wouldn’t they have to state some kind of interest in the case?
(I’m unsure, since I’ve never really looked at the phenomenon, which doesn’t exist in my native legal order. In EU law, my other home territory, intervenors do exist, under art. 40 Statute, but they rarely matter.)
I agree with Martin. I’m at a loss to see how ‘foreign’ law has any affect at all here except as persuasive and non-binding authority. I suppose you can cobble together an argument that the practices of other countries influence international customary law and, to some extent (albeit highly disputed), international customary law is a part of American common law (though some would even dispute that). But surely it can’t be said that the law of nations was the ‘foreign influence’ Washington was talking about … how is this ‘non-democratic’ control being exercised?
@Martin Holterman – Glad you find the cite of interest. You are quite right to question how Italy had an interest in the case. Canada’s Department of Justice thought the same thing and opposed Italy’s application to intervene on the grounds that it politicizes the court and legal process by involving a foreign country with no direct interest. Many legal observers in Canada also wondered why Canada’s highest court would allow a foreign state to intervene in a Canadian case (at a time when the Court was restricting intervenor status for Canadian NGOs). It’s unprecedented, but alas, it happened. Apparently the Italian Senate saw itself as on a global campaign to abolish the death penalty, and felt that it could apprise the Canadian court of European legal developments (which seems to assume that Canadian lawyers aren’t aware of these developments and can’t do comparative legal research.)
The most obvious way that other nations are trying to influence constitutional interpretation is through amici briefs filed in constitutional cases. This has been either in the name of those countries or by international law experts. Occasionally the argument is emerging customary international law, other times it is diplomatic friction arising from “aberrant” practices of the United States.
Roger Alford
But of course in the end of the day all one is doing is putting an argument or a perspective to the Court. It is the UNITED STATES Supreme Court that then decides whether and, if so, to what extent to rely on/take account of those international and comparative perspectives. So in fact, the meaning of the Constitution remains the domain of the Supreme Court as it has been since Marbury v Madison.
Relevant to this topic: http://prawfsblawg.blogs.com/prawfsblawg/2009/07/misunderstanding-judging-foreign-law.html#more
I have considerable difference seeing the US SC having much time for an amicus brief from Italy as a third-party-State, and oral argument time would appear beyond anyone’s wildest imagination.
Even in Australia with its comparatively very generous oral argument allocations I can’t see a third-party-State getting a look-in. No wonder Australians consider the Canadian Supreme Court such a radical court (consider its ‘equity’ jurisprudence, for example).