Academic journal article Albany Law Review

Citing Foreign and International Law to Interpret the Constitution: What's the Point?

Academic journal article Albany Law Review

Citing Foreign and International Law to Interpret the Constitution: What's the Point?

Article excerpt

Some years ago, I was lecturing in Brazil and Argentina on constitutional issues, and I spoke one day to a group of Brazilian judges on criminal procedure and due process rights in the United States. When I was finished, up stood one very frustrated Brazilian judge who complained that when prisoners come into his court, they demand their "Miranda rights."

I had several reactions to the judge's revelation. First of all, I could understand his frustration that a foreign system was injecting its law into his courtroom. As a prosecutor, I remember that even some state judges didn't like lawyers interjecting federal law into their courtroom--as if it were "foreign" law. With judges from other countries, there must be a special sense of resentment at the claimed superiority--sometimes--of United States law. My other reaction was, in a way, a sense of pride of the influence of American law. Actually, this was not so much evidence of the influence of American law as it was of the power of American media, film, and television. I realized that prisoners in Brazil, and probably all over the world, know just as much about the U.S. Constitution as the typical American student. That is, what they know about the U.S. Constitution they have learned from "cop" shows and movies which address the issues of criminal procedure--from arrest through trial.

There is much more to the U.S. Constitution, of course, than just what's portrayed on television and in the movies. Nevertheless, in this age of globalization, the message of the media shapes the worldwide understanding of U.S. legal culture. We live in a world, which has become much more wired than it was when I gave those lectures years ago in Brazil. Back then, you had only radio, television and film, all of which offer only one-way communication. Now, with the Internet, communication is much more interactive. So now one might ask: why shouldn't Americans listen to what others around the world have to say on issues that affect them, just as well as they do us? Indeed, Americans are more insulated than people in many other countries. It is often embarrassing when traveling abroad to have people ask, what do people in the United States think about us? The truth of the matter is that people in the United States rarely think about those outside of the United States. What most Americans know about other countries comes from watching television news reports--usually tragedies about events such as bombings in Israel or Iraq.

Many people outside the United States know more about U.S. politics than most Americans do. What the U.S. does affects them much more than what their countries do affects the U.S. When you watch news abroad, what you often see is what we would call local U.S. news. Of course, what you hear is not the same kind of commentary. But maybe that's the point. If people of other nations know a great deal about the U.S., why not listen to their views? Shouldn't we have a two-way communication, instead of just those of us in the United States expressing views on matters affecting political power, culture, law, etc.? This seems to be the question some members of the U.S. Supreme Court are asking themselves.

Although a constitutional originalist, I am also, however, a comparativist. I appreciate the importance of understanding international and foreign law. Indeed, to be an originalist, I believe, requires some understanding about international and foreign law. International law, known at the founding as the "law of nations," is background for much in our Constitution. (1) Federalism derives from ancient treaty arrangements; in other words, federalism is drawn from what we would call international relations. In discussing federalism, for example in The Federalist Papers, the Framers demonstrated their knowledge of the ancient federations of Greece and Rome, as well as those of Switzerland and the Netherlands. (2) Those who drafted the Constitution viewed them as undesirable models and deliberately chose not to follow any of them! …

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