Why Justice Scalia Ought to Like the European Court of Human Rights, or at Least Not Detest It So Much

The use of comparative jurisprudence in constitutional jurisprudence remain a very controversial issue, and one which I don’t want to go into in detail at this particular time. There’s one thing, however, that strikes me as rather interesting. Namely, at practically all of his appearances at which he discusses the use of foreign law, Justice Scalia loves using the European Court of Human Rights as a sort of scarecrow, an example of what judges should not be doing in a democracy.

So, for instance, at the January 2005 debate between him and Justice Breyer at the American University, Justice Scalia had this to say when discussing Lawrence v. Texas:

In my dissent in Lawrence, which was the homosexual sodomy case, I observed that the court cited only European law; said: Why, every European country has said you cannot prohibit homosexual sodomy. Of course, they said it not by some democratic ballot but by decree of the European Court of Human Rights, who was, you know, using the same theory that we lawyers and judges and law students — we know what’s moral and what isn’t. It had not been done democratically. Nonetheless, it was true that throughout all of Europe, it was unlawful to prohibit homosexual sodomy. The [Supreme] court did not cite the rest of the world. It was easy to find out what the rest of the world thought about it. I cited in my dissent the rest of the world was equally divided.

Likewise, at the 2006 debate with ACLU president Nadine Strossen, Justice Scalia again referred to the judges of the European Court. He stated that the abolition of the death penalty in Europe

was imposed by the Court of Human Rights, which said you cannot have the death penalty. So it’s not as though all Europeans voted to abolish it. It was judicially imposed. That doesn’t impress me very much.

(see here, at 3:20)

Now, it is on one level perfectly understandable why Justice Scalia dislikes the European Court. The Strasbourg judges’ entire purposive, teleological interpretative approach is anathema to Justice Scalia’s variant of originalism. Likewise, for almost thirty years, ever since the 1978 Tyrer case, the European Court has consistently held that the European Convention is a living instrument which must be interpreted in the light of present day conditions (the same approach that Justice Scalia sincerely wished would die in the US context). Finally, the European Court’s use of contextual balancing and proportionality tests in almost every situation is also contrary to Justice Scalia’s rather more categorical jurisprudence.

These fundamental methodological differences aside, however, Justice Scalia would probably be surprised that the substantive results that he prefers in the US context are those already reached by the European Court. I say ‘would be surprised’ because, with all due respect, neither of the examples that Justice Scalia gives of the European Court’s supposed misconduct are entirely correct on the facts.

When it comes to the death penalty in Europe, it was simply not outlawed by judicial fiat. On the contrary, unlike the US Constitution, Article 2(1) of the European Convention expressly allows for the imposition of the death penalty. That is why European states have outlawed the death penalty in a democratic process, through their own domestic laws, and amended the European Convention through Protocols 6 and 13, abolishing the capital punishment in times of peace and in all circumstances, respectively.

When it comes to gay rights, Justice Scalia is correct in stating that the European Court disallowed the criminal prohibition of homosexual conduct in Europe, in cases such as Dudgeon v. UK, Norris v. Ireland and Modinos v. Cyprus. What he doesn’t realize is that the vast majority of European countries had decriminalized sodomy before the European Court did anything. In fact, the European Court merely asked a very small, reluctant minority of European states, among them Ireland, Northern Ireland within the UK, and Cyprus, to conform to what the majority was already doing. Indeed, this comparative inquiry by the European Court into the practices of other European states was only natural in the context of Article 8 of the ECHR, which prescribes that restrictions on the right to privacy must be ‘necessary in a democratic society.’ All the Court said to the three reluctant countries was: when all these other democratic societies in Europe can do without punishing homosexuality, why can’t you?

The US Supreme Court in Lawrence did much the same as it surveyed the practice of the federated American states (Lawrence at 13). Yet, I would imagine that Justice Scalia would certainly prefer the European Court’s 1981 Dudgeon decision to his colleagues’ pronouncements in Lawrence, who held that, even under rational basis review, the statute in question furthered no legitimate state interest which could justify its intrusion into the personal and private life of the individual (Lawrence at 18, O’Connor at 5)

This holding Justice Scalia positively railed against, as it in his view opened up to attack criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity (Scalia at 14-15). Article 8(2) of the ECHR, on the other hand, explicitly treats the protection of morals as a legitimate aim for government regulation, as did the Court itself in Dudgeon – it just didn’t find that the restriction imposed, the criminalization of consensual homosexual conduct, truly was necessary to further this legitimate interest.

This brings us to the question of abortion, which was not mentioned by Justice Scalia, but which is central to American constitutional discourse. Even though most European countries have liberal abortion laws, the European Court never held that the right to privacy under the ECHR encompasses abortion on demand. On the other hand, the Court has also held in Vo v. France that, in the absence of any European consensus, the right to life under the ECHR doesn’t extend to the fetus. In other words, the European Court has left it up to individual states to regulate abortion as they see fit, within certain minimal parameters. Some states have very liberal abortion laws, while others, such as Ireland, Malta or Poland have very restrictive ones. This is, I gather, precisely the result that Justice Scalia would wish for in the US context.

I am not saying that the example of the European Court is to be emulated, though Justice Scalia should certainly try to find a different scarecrow. It is important to note, however, that criticism of others is meaningful only when it is informed by fact and by a decent understanding of what they are doing (this goes for Europeans as much as for Americans). It is also interesting how less than fully informed criticism can actually reflect one’s own preoccupations. Nobody in Europe thinks that they are ruled from Strasbourg by philosopher kings coming straight out of the pages of Plato, but that is how (especially conservative) American lawyers indeed perceive Europe. Justice Scalia’s statement that it was the European Court that abolished the death penalty seems only natural to American lawyers, when it is everything but – note that even Nadine Strossen herself did not find anything strange about it. This just confirms, I think, that even if one doesn’t use foreign law directly in constitutional adjudication, understanding foreign law can only enhance one’s understanding of one’s own legal system.