Don't Impose Foreign Law on Americans

The American Enterprise, May 2006 | Go to article overview

Don't Impose Foreign Law on Americans


Supreme Court Justice Antonin Scalia recently delivered these remarks at the American Enterprise Institute:

I'm talking today about the use of foreign law in American judicial opinions, and most of what I have to say is unfavorable, so I feel I should begin by pointing out that I am not a xenophobe. I don't mind foreign law. In fact, in my years as a law professor, I used to teach foreign law. You don't understand your own language until you've taken some foreign language, and I think you do not understand your own legal system--its distinctiveness, and what drives it-until you examine some other system.

I do not take the position that foreign law is never, ever relevant to American judicial opinions. It sometimes is. For example, in the interpretation of treaties, whose object is to have nations agree on a particular course of action, I am inclined to follow the interpretation of other signatories so long as it's within the realm of reasonableness. I also think that foreign law is sometimes relevant to the meaning of an American statute. For example, our Foreign Sovereign Immunities Act permits suits for property "taken in violation of international law." We had a case a few terms ago involving the seizure of some valuable paintings by the Nazis. Obviously, whether the person seeking to have the paintings restored was entitled to them depended upon whether that person owned the paintings--and that was a question of Austrian law. So we obviously had to consult Austrian law for that purpose.

I think foreign law can also profitably be discussed in the opinions of U.S. courts where it is consulted to predict results of a particular ruling. You can look to foreign law and say, gee, they did this in Germany and the skies didn't fall. That's certainly a very valid use of foreign law.

But those are not the uses that worry people. I think people are concerned principally about the use of foreign law in the interpretation of the United States Constitution. Even there I have to tell you I cannot say it is never relevant. Of course, the foreign law I think is relevant is very old foreign law. Very old English law-because what is meant by the terms of our federal Constitution depended upon what Englishmen in 1791 considered due process of law, what they considered to be cruel and unusual punishments, and so forth. So I use foreign law all the time. But it is all very old English law.

What about modern foreign legal materials? Well, that is where I get off the boat. It is my view that modern foreign law can never be relevant to an interpretation of the meaning of the United States Constitution.

Yet the Supreme Court has recently expanded the use of foreign law. In Lawrence v. Texas, decided in 2003, the Court relied upon action of the British Parliament and a decision of the European Court of Human Rights in declaring that laws punishing homosexual conduct were un-Constitutional in America.

I expect, and fear, that the Court's use of foreign law in the interpretation of our Constitution will continue at an accelerating pace. And I think this for three reasons. First, because the "living Constitution" paradigm of interpretation prevails on today's Court, and indeed in our legal community generally. Under this view, it is the task of the Court to make sure that the current Constitution comports with "the evolving standards of decency that mark the progress of a maturing society." Once you assume the power to revise what the Constitution requires in order to keep it up to date, you are effectively engaged in the process of writing your Constitution anew, and there is no reason whatever not to consult foreign materials in doing it.

The second reason foreign law is likely to be used increasingly is Sir Edmund Hillary's reason--because it's there. Let's face it: it's pretty hard to put together a respectable number of pages setting forth reasons for newly imposed Constitutional prescriptions or prohibitions (as a legal opinion is supposed to) that do not at all rest upon one's moral sentiments, one's view of natural law, one's philosophy, or one's religion. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Don't Impose Foreign Law on Americans
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.