The Use and Abuse of Foreign Law in Constitutional Interpretation

Sitaraman, Ganesh, Harvard Journal of Law & Public Policy

This Article provides an exhaustive typology of the uses of foreign law in order to provide insight into whether foreign law can appropriately be used in constitutional interpretation, when it can be used, and what the stakes and parameters are in each case. In doing so, the Article addresses two significant problems in the debate on foreign law.

First, much of the commentary has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured the more basic question about the ways in which foreign law can be used, that is, the how of foreign law. Focusing on the why of foreign law threatens to generalize arguments into debates on "foreign law" as a whole when debating particular methods of foreign law usage may be more helpful. Some methods of use may be more easily justified and others totally unjustifiable.

The second problem is one of exhaustiveness: Some scholars have recognized the need to focus on the how of foreign law, but they have identified only a limited set of ways in which foreign law could be used. This limited categorization of foreign law usage prevents clear evaluation of which uses are appropriate. This Article's typology demonstrates that most uses of foreign law are not problematic, and as a result, the foreign law debate should focus specifically on the few potentially problematic uses, rather than on "foreign law" more generally.

INTRODUCTION
 I. ARGUMENTS ABOUT THE USE OF
    FOREIGN LAW
    A. Arguments from Liberal Democracy
    B. Arguments from Accuracy
II. A TYPOLOGY OF FOREIGN LAW
    A. Unproblematic Uses of Foreign Law
       Mode 1: Quoting Language
       Mode 2: Illustrating Contrasts
       Mode 3: Logical Reinforcement
       Mode 4: Factual Propositions
    B. Potentially Problematic Uses
       of Foreign Law
       Mode 5: Empirical Consequences
       Mode 6: Direct Application
       Mode 7: Persuasive Reasoning
    C. Troublesome Uses of Foreign Law
       Mode 8: Authoritative Borrowing
       Mode 9: Aggregation
       Mode 10: No Usage
CONCLUSION

INTRODUCTION

These days, it seems everyone has something to say about the use of foreign law in constitutional interpretation. Sparked by the use of foreign and international materials in Atkins v. Virginia (1) and Roper v. Simmons, (2) commentators have written much on whether and when foreign law can be appropriately considered in constitutional interpretation. (3) In opinions or speeches, virtually every Supreme Court Justice has weighed in: Justice Thomas considers foreign law to be similar to "moods, fads, or fashions." (4) Justice Scalia thinks that foreign law can make the opinions of Americans "essentially irrelevant." (5) At the same time, Justice Kennedy believes the use of foreign law is a central part of American moral leadership in the world because it can help express a "unified concept of what human dignity means." (6) Justice Ginsburg thinks it merely involves "sharing with and learning from others." (7) And Justice Breyer sees foreign law as shedding "empirical light" on common problems. (8)

Although so many have weighed in on both sides of this topic, and have fleshed out so many of the important issues, (9) the literature has suffered from two important problems. First, much of the commentary has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. To be sure, this approach is of obvious purchase and considerable intellectual interest. Whether or not foreign law should be used in constitutional interpretation should be dependent on the reasons why it can or cannot be used. But the focus on the why of foreign law has obscured the more basic question about the ways in which foreign law can be used, that is, the how of foreign law. Before evaluating the principled arguments for or against foreign law, one must identify which method of usage is being judged. Focusing on the why of foreign law threatens to generalize arguments into debates on "foreign law" as a whole when it may be more helpful to debate particular methods of foreign law usage. (10) Some methods of use may be more easily justified and others totally unjustifiable. The second problem is one of exhaustiveness: Some scholars have recognized the need to focus on the how of foreign law, but they have identified only a limited set of ways in which foreign law could be used, in many cases defining three categories. (11) This limited categorization of foreign law usage prevents clear evaluation of which uses are appropriate.

This Article seeks to introduce clarity on the varieties of foreign law (12) usage in order to provide insight into whether foreign law can appropriately be used in constitutional interpretation, when it can be used, and what the stakes and parameters are in each case. It attempts to outline an exhaustive (13) set of ways in which foreign law can be used, and it evaluates each method with respect to the central values at issue in the foreign law debate. It finds that most uses of foreign law are not problematic, and as a result, that the foreign law debate should focus specifically on the few potentially problematic uses, rather than on "foreign law" more generally. Part I briefly outlines the central arguments for and against the use of foreign law to establish a set of metrics to evaluate each particular type of foreign law usage. Part II presents a typology of ten ways in which foreign law can be used, describes the contours of each usage, and outlines the challenges to each usage.

I. ARGUMENTS ABOUT THE USE OF FOREIGN LAW

Before outlining and evaluating how foreign law can be used in constitutional interpretation, it is necessary to describe the criteria by which to measure the acceptability of foreign law use. There are many critiques of and justifications for the use of foreign law, but they can be loosely grouped into two categories: arguments about liberal democratic values and arguments about accuracy. The first category encompasses both the argument that liberal democracy is undermined when judges rely upon the decisions of foreign courts or statements of international bodies, and the corresponding counterargument that the existence of a democratic society depends on preconstitutional values in the form of basic human rights or conditions for democratic participation. The second category includes both the argument that considering foreign materials has innumerable methodological problems such as selective or shallow use of sources, and the corresponding counterargument that considering foreign law provides more information and thus better judicial decision making. This Part briefly considers each of these arguments as a reference point for evaluating the various modes of foreign law usage developed in Part II.

In addition to the arguments presented here, understanding the more foundational debate between theories of constitutional interpretation is essential to understanding the core justifications for and criticisms of using foreign sources of law. Describing that debate is beyond the scope of this Article, but it is worth briefly noting a few leading theories of constitutional interpretation, as their arguments loom large in the background of this more particular debate. Originalists believe that the Constitution should be interpreted in accordance with the original public meaning of the text: that is, what a person at the time of the ratification of the provision would have understood the meaning to be. (14) Under this theory, foreign sources would be permissible sources if they would have been part of the understanding of a provision at the time of ratification. In contrast, those who follow a moral reading (15) of the Constitution would look to foreign sources if they bore on answering the deep moral questions that undergird constitutional principles. Followers of James Bradley Thayer would hold that courts should be highly deferential to legislatures. (16) Thus, foreign sources that validate deferential decisions may perhaps be unobjectionable to Thayerites. The goal of this Article is not to resolve this debate but rather to provide greater clarity, and with it, helpful insights, regardless of the theory of constitutional interpretation to which one subscribes.

A. Arguments from Liberal Democracy

Evaluating the use of foreign law requires considering its effects on democratic decision making and on freedom and democracy as constitutional values. One trenchant critique of foreign law use argues that "a constitution is, first and foremost, supposed to be the foundational law a particular polity has given itself through a special act of popular lawmaking." (17) The legitimacy and validity of constitutional law are derived from the opinions of the people, (18) and the constitution expresses the values of the nation through the process of democratic self-governance. (19) The specificity of constitutional ideas to the nation is important, and the maintenance of a distinct constitutional culture (20) is dependent on decisions being both created by and accountable to the people within the country. Only then is a nation's constitution democratic and expressive of national values.

Thus, this "nationalist" approach (21) resists the use of foreign materials in constitutional interpretation. (22) Foreign materials represent the considered ideas not of the national citizenry but of other communities, whose citizens have less (perhaps even no) right to, interest in, or responsibility for the expressive values of a nation. If constitutional democracy is to mean anything, this argument runs, it requires that the domestic community shape constitutional meaning. To be sure, there are many sets of expressive values within any national community, (23) but the community must embrace a set of principles through the process of self-governance for any particular value to be brought legitimately into the canon of constitutional values.

This nationalist approach often attaches a structural critique to its values-based expressive critique. Given the centrality of democracy, unelected judges are in the worst position among the three branches of government to determine fundamental issues of national values. In Roper, for instance, the Supreme Court ignored that the political branches had placed reservations on various international agreements, such as the International Covenant on Civil and Political Rights, explicitly reserving the right to execute minors convicted of capital crimes. (24) Instead, the Court cited those agreements as confirmation of its decision to strike down the juvenile death penalty. (25) On the structural account, the problem in Roper was that the political branches had clearly expressed the will of the democracy through reservations, but judges overturned that decision in favor of international opinion. This "international countermajoritarian problem" (26) parallels the domestic countermajoritarian problem (27) and cautions a limited role for the judiciary. (28)

Arguments from liberal democracy are not all against the use of foreign law. Liberal democracy is conditioned on individuals having certain basic rights. Some thus argue that constitutions "express universal rights and principles, which in theory transcend national boundaries, applying to all societies alike." (29) Justice Kennedy perhaps put it best: "[T]here's some underlying common mutual interest, some underlying common shared idea, some underlying common shared aspiration, underlying unified concept of what human dignity means." (30) Looking to foreign and international law is a way to identify what that common meaning of human dignity is and a way to understand how it manifests itself in the practical contexts that arise in judicial cases. The weaker form of this universality argument is that values and rights are less like natural law and more like "community standards," a shared understanding of what particular ideas mean at a particular time. Whether presented in the strong or weak form, the basic idea is that certain values or rights are too fundamental to be left in the hands of majorities--they are preconditions for democracy itself. (31)

But preconditions go beyond individual rights. Nations do not exist in a vacuum. Rather, every nation needs to be accepted as legitimate within the international system, and that too might require a broader role for foreign law in constitutional interpretation. The use of foreign and international law can act as a "shout out" to other nations to signal inclusion in a shared international community. (32) It can assist in establishing global legitimacy for certain behaviors and practices because practices and norms will converge over time, creating single standards. (33) And it can help promote an international system of justice that links and strengthens the community of nations. (34) By considering foreign and international law, a nation signals that it is part of a broader community, earns goodwill, and shapes the community itself. The international community, in turn, affirms and embraces the place of the nation within it. Respect and legitimacy are, under this approach, prerequisites for a secure, democratic state.

B. Arguments from Accuracy

The second set of critiques and justifications for the use of foreign law can be described broadly as involving judicial accuracy. Critics of foreign law on accuracy grounds are perhaps inspired by Alexander Pope's famous lines: "A little learning is a dangerous thing; Drink deep, or taste not the Pierian spring." (35) The trouble with using foreign law is that the laws of different countries are complex (36) and contextual. (37) For any judge to get even the basic facts of another country's constitutional system, structure, culture, history, and processes correct would require considerable time, effort, and expense. (38) Even though a factual situation or legal issue might be similar, the constitutional text that must be interpreted might differ, (39) rendering the similarities merely superficial given traditional methods of constitutional interpretation. Beyond just the text, different nations might have different traditions or expressive values with respect to even basic human rights, such as the famous difference in American and British views of libel and free speech.

In addition, a foreign decision might be based on political interests and values, or a particular political context, thus decreasing its usefulness as a well-reasoned and generalizable position. For example, the U.S. Supreme Court has decided many cases in the midst of war, offering broad deference to the political branches or avoiding significant constitutional questions, only to reverse its position and address the question head-on after the conflict has abated. (40) Because such …

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Publication information: Article title: The Use and Abuse of Foreign Law in Constitutional Interpretation. Contributors: Sitaraman, Ganesh - Author. Journal title: Harvard Journal of Law & Public Policy. Volume: 32. Issue: 2 Publication date: Spring 2009. Page number: 653+. © 2009 Harvard Society for Law and Public Policy, Inc. COPYRIGHT 2009 Gale Group.

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