A Project of the American Enterprise Institute and the Federalist Society

Outsourcing American Law

American Enterprise Institute

Keynote Address by Justice Antonin Scalia

American Enterprise Institute February 21, 2006


Chris DeMuth: Ladies and gentleman we are greatly honored that Justice Scalia would return to his old haunts at the American Enterprise Institute and speak on the topic of our conference today, Outsourcing American Law. During the years between his service in the Ford Administration and his first appointment to the federal judiciary, Justice Scalia taught law as a professor at the University of Chicago Law School and during those years was a scholar at the American Enterprise Institute and was founding co-editor of one of our greatest ventures, The Journal Regulation magazine. At AEI, we like to think that it was during those years at AEI that he honed his talents for crunch and analysis and strong writing that has been so wonderfully on display in the pages of the United States reports. My first essay for AEI fell under the stern editorial pen of Professor Scalia. I remember that it was an edifying and very humbling experience. I came out of it a better man though. I have often thought that it would be a wonderful step forward for the Supreme Court in the clarity and crispness and decisiveness of its opinions. If the other justices would simply agree to send their drafts to Justice Scalia's chambers and he would revise and edit them before sending them along to the printer.

In his years at the Supreme Court he has had occasion to deal in his important capacity with many of the issues that he dealt with as a professor at AEI those many long years ago. And also with many new and arresting issues, such as the topic of his talk here this afternoon. Would you all please give a warm welcome to

Justice Antonin Scalia. [Applause]

Justice Scalia: Thank you, Chris. I appreciate that introduction, which was mercifully short. I do indeed recall with great fondness my years here at AEI. It was a wonderful time. There were a lot of interesting people in residence. Irving Kristol, Bob Bork was here, Jude Wininski. It was a wonderful stay as a resident scholar.

I?m talking today about the subject of the use of foreign law in American judicial opinions. Most of what I will have to say is unfavorable to the use of foreign law. 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. One of my subjects as comparative law. And I do indeed believe that comparative law might well be made a mandatory subject in United States law schools because I believe that justice, you do not understand your own language until you've taken some foreign language, whether it be Latin or German or any other one. So, also, I think you don't understand your own legal system until you see how ordering of the same matters could be done in a different way. The only way to appreciate the distinctiveness of your system -- what drives it -- is to examine some other system.

So, moreover, 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, the object of a treaty is to have nations agree on a particular course of action. If I am interpreting a provision of a treaty that has already been interpreted by several other signatories, I am inclined to follow the interpretation taken by those other signatories so long as it's within the realm of reasonableness. I mean, if they've taken an absolutely unreasonable interpretation, of course I wouldn't follow it. But where it's within the bounds of the ambiguity contained in the text, I think it's a good practice to look to what other signatories to the treaty have said. Otherwise you're going to have a treaty that's interpreted different ways by different countries and that's certainly not the object of the exercise. I also think that foreign law is sometimes relevant to the meaning of an American Statute. For example, if the Statute is designed to implement a treaty provision, the interpretation of that treaty provision by foreign courts is relevant to what the treaty means, and hence, relevant to what the provision of the American Statute implementing the treaty means.

In other cases, moreover, the issue that arises under the Statute depends upon foreign law. We had a case a few terms ago that involved the question whether, under a United States Statute, a corporation organized in the British Virgin Islands was a citizen or subject of a foreign state. That was the American Statute. Well, I couldn't decide that question without consulting British law as to whether a corporation in the British Virgin Islands was a citizen or subject of Britain.

Another example of the same phenomenon, the foreign sovereign immunities act permits suit against foreign sovereigns for property taken in violation of international law. Well, we had a case a few terms ago involving the seizure of some valuable paintings by the Nazis. Well, obviously, whether the person who was seeking to have the paintings restored was entitled to that or not depended upon whether or not the person owned the painting. And that question was a question of Austrian law. So, we obviously had to consult Austrian law for that purpose.

Finally, I think foreign law can also profitably be discussed in the opinions of United States courts where it is consulted in response to the argument made that if you interpret this Statute this way, or if you interpret the Constitution this way, the skies will fall. Okay. Predictions of disaster if you adopt a certain interpretation. Well, you can look to foreign law and say, well, 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 really the issues that I think people are concerned about. 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. To tell you the truth, I probably think it's relevant more often than most people on the Supreme Court. Of court, the foreign law I think is relevant is very old foreign law. [Laughter] Very old English law because what is meant by the terms of the federal Constitution depended upon what Englishman 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 foreign legal materials can never be relevant to an interpretation of, to the meaning of the United States Constitution. Sometimes the Supreme Court seems to have agreed with this view. For example, in a 1997 case called Prince vs. United States, a case deciding whether the federal government could press state law officers into service to administer a federal Statute the Statute provided that state sheriffs would have to do some paperwork for the implementation of the federal law the court rejected as irrelevant Justice Briar's assertion that Switzerland, Germany, and the European Union all provide that the constituent states must themselves implement many of the laws enacted by the Central Federation. The court's opinion rejected that citation of foreign law saying the following, we think such comparative analysis inappropriate to the task of interpreting a constitution. Though it was of course quite relevant to the task of writing one.

In other cases, however, in many other cases, opinions for the court have used foreign law for the purpose of interpreting the Constitution. The first such case I'm familiar with was in 1958. A case involving the Eighth Amendment, that is the cruel and unusual punishment clause, in Trope vs. Dulles, the court held that the Eighth Amendment forbids the penalty of forfeiture of citizenship because interalia, the civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. Reliance upon foreign law has been made with increasing frequency in Eight Amendment cases.

In Coker vs. Georgia, a 1977 case, the court noted that out of 60 major nations in the world surveyed in 1965, only three retained the death penalty for rape where death did not ensue.

In Endman vs. Florida, a 1982 case, the court observed that the doctrine of felony murder has been (that's any murder that occurred in the course of a felony was made a capital crime under the laws of many states) The court observed that ?The doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other commonwealth countries and is unknown in Continental Europe.

In a 1988 case, Thompson vs. Oklahoma, the court noted that other nations that share our Anglo-American heritage and the leading members of the Western Europe community opposed the death penalty for a person less than 16 years old at the time of the offense. I must interject that almost all of those countries also opposed the death penalty when a person was more than 16 years old at the time of the offense, but never mind.

In Adkins vs. Virginia, decided in 2002, the court thought it relevant that, within the world community the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. That was relevant to the court's interpretation of our Eighth Amendment.

Recently the court has expanded the use of foreign law beyond the area of the Eighth Amendment. In Lawrence vs. 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 unconstitutional under the American Constitution.

And of course, individual justices have urged the relevance of foreign law in other cases as well.

I expect, or rather I fear that the court's use of foreign law in the interpretation of the Constitution will continue at an accelerating pace. And I think so for three reasons. First, because the living Constitution paradigm for the task of Constitutional interpretation prevails on the court and indeed in the legal community generally. Under this living Constitution view, it is the task of the court to make sure that the current Constitution comports with, as we have put the point in the Eighth Amendment context, the evolving standards of decency that mark the progress of a maturing society. Thus, a Constitutional right to abortion, which assuredly did not exist during the first few centuries of our countries existence, does exist today. Likewise, a Constitutional right to homosexual conduct.

Of course I disagree with this living Constitution approach, but that is not my purpose here to debate originalism. Rather my point is that once you assume the power to revise what the Constitution requires in order to keep it up to date, once you assume that power, then the criticism voiced by the court in Prince, which I quoted earlier, namely that comparative analysis is inappropriate to the task of interpreting a Constitution, though it was, of course, quite relevant to the task of writing one, that criticism no longer has any bite. You are engaged in the process of writing your Constitution and there is no reason whatever not to consult foreign materials in doing it. I suppose it could be argued that you can be a living constitutionalist who wants to create only a new American Constitution. Sort of a living constitutionalist who doesn't care what foreign countries think, but wants to update the American Constitution according to the likes of Americans. Well, that's certainly a possible position. It is not, however, one that I think is likely to prevail because I do not think that very many living constitutionalists are likely to be what you might call chauvinistic living constitutionalists. That is dedicated to affecting only those changes in the Constitution that the American people desire. The American people can make their will well enough known by creating new rights legislatively through the federal and state legislatures. Or in the last analysis, by amending the Constitution in the Democratic method that the Constitution contains. One who believes that it falls to the courts to update the list of rights guaranteed by the Constitution tends to be one who believes in a platonic right and wrong in these matters, which wise judges are able to discern when the people at large cannot.

In fact, it has occurred to me that this notion of an over-arching moral law that is binding upon all the nations of the world and that all the judges of all the nations of the world are charged with interpreting, has replaced the common law. Those of you who are lawyers remember that in the bad old days, that is to say before Erie Railroad vs. Tompkins in what, 1947, the courts believed that there was a single common law. It was up there in the stratosphere. Now, the state courts of California said it meant one thing. The state courts of New York said it meant something else. And the federal courts might say it meant a third thing. But one of them was wrong because there really is a common law and it's our job to figure out what it really is.

So, in those days, any common law decision in one state would readily site common law decisions of other states because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called the what was his phrase the brooding omnipresence in the sky that was the common law. Well, I think we've replaced that with the law of human rights, which is a moral law. Surely there must be a right and a wrong answer to these moral questions. Whether there's a right to abortion, whether there's a right to homosexual conduct, what constitutes cruel and unusual, and so forth. Surely there is a right and wrong moral answer. I believe there is. The only thing is, I'm not sure what that right answer is. I am for myself, but I am not sure it's the same as what you think. And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, site one another's opinions, and that somehow they are qualified by their appointment to decide these very difficult moral questions is quite surprising to me. But I am sure that that is where we are that there really is a brotherhood of the judiciary who indeed believe that it is our function as judges throughout the world to determine the proper meaning of human rights. And what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. That's why I think if you are a living constitutionalist, you are almost certainly an international living constitutionalist.

The second reason foreign law is likely to be used increasingly in our living Constitution decisions 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, as a legal opinion is supposed to do, analytical reasons for newly imposed constitutional prescriptions or prohibitions that do not at all rest as the original Bill of Rights did not at all rest upon logic or analysis, but rather upon one's moral sentiments, one's view of natural law, one's philosophy or one's religion. How to explain logically and analytically why government limitation of sexual freedom by rendering bigamy or adultery or incest to crime is perfectly constitutional. While it's limitation of sexual freedom by making homosexual relations a crime is not. Decisions on such matters, whether taken democratically by society or undemocratically by courts, have nothing to do with logic or analysis. So, without something concrete to rely on, judicial opinions will be driven to such philosophic or poetic explanations as appeared in one of our opinions, at the heart of liberty is the right to define one's own concept of existence of meaning of the universe and of the mystery of human life. Surely, not a happy state of affairs for a law court. It will seem much more like a real legal opinion if one can site authority to support the philosophic, moral or religious conclusions pronounced. And foreign authority can serve that purpose. You can site the name of the case and it has letters and numbers after it, 33 Uganda law reports whatever. [Laughter] And it looks very legal.

The third reason foreign law will be increasingly used is an intensely pragmatic one. Adding foreign law to the box of available legal tools is enormously attractive to judges because it vastly increases the scope of their discretion. In that regard, it is much like legislative history, which ordinarily contains something for everybody and can be used or not used, used in one part or in another, deemed controlling or pronounced inconclusive depending upon the result the court wishes to reach. Consider in Lawrence the court cited European law to strike down soddomy laws, but of course Europe is not representative of the whole world. Zero out of 50 countries in Europe prohibit soddomy. Not necessarily, by the way, because of the Democratic preferences of those 50 countries, but because of the uniformity imposed by the European court of human rights. But 33 out of 51 countries in Africa prohibit it; eight out of 43 countries in the Americas; 27 out of 47 Asian Pacific countries, and 11 out of 14 countries in the Middle East. Thus, the rest of the world aside from Europe is about evenly split on the issue.

The court's reliance on foreign sources has also been selective as to when foreign law is consulted at all. Not only which foreign law you consult, but whether you consult it. For example, although the United States was in the minority in allowing states to prohibit soddomy, it was not in the minority in allowing states to restrict abortion. According to the United Nations, the United States is now one of only 53 countries classified as allowing abortion on demand, versus 139 countries allowing it only under particular circumstances or not at all. Among those countries the UN classified in 2001 as not allowing abortion on demand were the United Kingdom, Finland, Iceland, India, Ireland, Japan, Luxembourg, Mexico, New Zealand, Portugal, Spain, Switzerland, and virtually all of South America. But the court has generally ignored foreign law in its abortion cases. Casey does not mention it at all. Roe discusses only modern British law, which in any event is more restrictive than what Roe held. I will become a believer in the ingenuousness, though never in the propriety of the court's new found respect for the wisdom of foreign minds when it applies that wisdom in the abortion cases.

I hope I have made it clear that my belief that use of foreign law in our constitutional decisions is the wave of the future does not at all suggest that I think it's a good idea. I do not. The men who founded our republic did not aspire to emulating Europeans, much less the rest of the world. I wrote an opinion for the court a few terms back overruling an earlier case which had held that the confrontation clause is satisfied so long as the unconfronted testimony, that is to say here say testimony has particularized guarantees of trustworthiness. The opinion pointed out that the confrontation clause was designed precisely to prevent a procedure considered trustworthy by continental European nations and others that followed the civil law tradition. Examinations of witnesses upon interrogatories, wrote John Adams, are only by the civil law. Interrogatories are unknown at common law and Englishman and common lawyers have an aversion to them, if not an abhorrence of them. As recently as 1993, France was still defending its use of ex-party testimony before the European Court of Human Rights arguing that the defendant's accusers in a drug trafficking case had a legitimate interest in remaining anonymous. And that the defendant's rights were adequately protected so long as the judge held hearings which enabled him to satisfy himself, that the witnesses stood by their statements. Should we have loosened up our confrontation clause in light of foreign opinion on this subject?

France permits suits against the executive branch only in an executive branch court called the Conseil d'etat, whose members are appointed and promoted by the executive and who regularly alternate between performing executive functions and adjudicating the lawfulness of other people's performance of executive functions.

Other European countries have somewhat similar systems, though the extent of their participating in executive functions may be more limited. This is a practice that Tocqueville contrasted unfavorably with our own as long ago as 1835. Should we change our mind?

In number 46 of the Federalist, James Madison speaks contemptuously of the governments of Europe which are, afraid to trust the people with arms. Should be revise the Second Amendment because of what these other countries think?

In November of 2002, the Counsel of Europe approved what was called, an additional protocol to the convention on cyber crime which would make it illegal to distribute anything online which advocates, promotes or incites hatred or discrimination. A spokesman for the United States Department of Justice said, quite correctly, that this country could not be a party to such a treaty because of the First Amendment. If all of Europe thinks that such a provision does not unduly limit speech, should we reconsider? And I could go on.

If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are and nothing has changed. I dare say that few of us here would want our life or liberty subject to the disposition of French or Italian criminal justice. Not because those systems are unjust, but because we think ours is better. What reason is there to believe that other dispositions of a foreign country are so obviously suitable to the morals and manners of our people that they can be judicially imposed through constitutional adjudication. And is it really an appropriate function of judges to say which are and which aren't. I think not. Thank you. [Applause]