One of the issues constantly vexing constitutional scholars is the role that foreign sources of law should play in jurisprudence, especially the Supreme Court’s jurisprudence. These days, it seems that enlightened liberals generally argue that foreign sources can very well be persuasive sources of law. We can imagine examples where they might be persuasive, in terms of ideas, but as sources of law? Hardly. These enlightened liberals may even argue that foreign sources of law have played a role in our jurisprudence for some time. Read that link and laugh at the example, silly for two reasons I can name off the top of my head (the case’s staying power and the use the law was put to).
Arizona Senator Jon Kyl started a discussion on this topic during Chief Justice Roberts’ confirmation hearings (emphasis added):
Kyl’s primary concern was the practice by some U.S. judges of citing foreign law in support of their decisions. He specifically mentioned last term’s ruling Roper v. Simmons (invalidating the death penalty as applied to minors) where the court has cited foreign law. “It’s an American constitution,” said Kyle [sic], not a British or a French or an Iranian constitution.
“What,” he asked Roberts, is the “role of foreign law” in interpreting the Constitution?
Roberts said his concern about citations to foreign law arose when foreign law was cited as “precedent” for a decision. “If we’re relying on a decision by, say a German judge,” there is no accountability, he said.
I’m not really concerned with that point. But this one should be worrisome to everyone:
In “foreign law you can find anything you want,” Roberts said. ” … That actually expands the discretion of the judge,” allowing him to “cloak his own views” in the garb of legitimate precedent.
Which leads to the question: what may a Supreme Court Justice base her or his opinion on? Usually, the Justices are called upon to interpret American law, using precedent and other sources of American law. It doesn’t seem as though consideration of foreign law would be relevant, and especially so from non-English speaking countries. It seems as though Justices decide to base their opinions on… whatever they want to base it on! It also seems that Justices may set their jurisdiction as… whatever they want it to be!
I am wondering, since I don’t know the answer, if the US Supreme Court has cited foreign sources of law more than the US Declaration of Independence, and which might be more persuasive given a certain case? As Sammy and I have most notably argued in UES, the Declaration of Independence is powerful stuff:
Revolution
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. [...] That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. [...] But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Equality
We hold these truths to be self-evident, that all men are created equal
Fundamental Rights
We hold these truths to be self-evident… that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Government’s Errors
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. [...] For cutting off our Trade with all parts of the world: For imposing Taxes on us without our Consent: For depriving us in many cases, of the benefit of Trial by Jury ….
What will happen when Justices of the Supreme Court decide they don’t like what the current sources of interpretation say and they begin invoking the Declaration of Independence as Simon Agranat did in Israel?
Will we live to see the day?
Wouldn’t the Court have first to admit that it had participated in “a long train of abuses and usurpations?”
Besides, Admiral, aren’t the Declaration and Constitution rather “quaint” to be sources of modern law? My God, Congress mightn’t be able to fund the National Museum of Drag Racing, and then where would we be?
In my opinion, basing laws on foreign jurisprudence is not only irresponsible but a threat to our way of life. It seems that relying on foreign precedent is a way to circumvent that which makes the true practice of law challenging, that is, thinking hard and making tough choices. Apart from the laziness it inhibits, it could place in danger the very foundation of a society. Considering the diversity in values and principles that exist today between different societies, it would seem likely that somewhere in the world a society exists which has established the precedent necessary to justify one’s decision.
The use of foreign sources of law should be limited if not avoided completely in our courts. They are fine as a source of research and learning, but to actually base a decision or argument on foreign precedent is a slippery slope at best and an outright threat to the integrity of our legal system.