A Project of the American Enterprise Institute and the Federalist Society

Citing Foreign Law

Washington Post

March 21, 2006

Washington Post Editorial

IN A SPEECH last month at the Constitutional Court of South Africa, Justice Ruth Bader Ginsburg made some unfair insinuations about critics of the use of foreign law in American courts. Justice Ginsburg was defending what is, in our view, a perfectly defensible proposition: that American courts should "learn from legal systems with values and a commitment to democracy similar to our own." Yet in doing so, she managed to link those who take an opposing view to the legacies of slavery and apartheid and to paint them as "fuel[ing] the irrational fringe" in its threats against judges.

To hear Justice Ginsburg describe the matter, you'd think the use of foreign law presents an easy question, legally and morally. In her speech, she quoted language from Chief Justice Roger Taney's infamous Dred Scott decision that rejected the notion that European opinions ought to guide American understanding of the Constitution. She went on to note that South Africa under apartheid also rejected the influence of foreign law, while its 1996 constitution explicitly invites its consideration. And she attacked members of Congress for introducing bills to eliminate the use of foreign precedents in American judicial decisions. Such legislation, she suggested, was responsible for an incident in which someone posted a call on the Internet for her and then-Justice Sandra Day O'Connor to be assassinated.

We don't support such legislation, but its advocates present one side of a valid debate, and there is no cause to blame them for the incitements of others. In the debate over foreign law, neither side has a monopoly on wisdom.

We agree with Justice Ginsburg and the court majority that American courts need not pretend that foreign courts do not exist. Law review articles, after all, constitute a legitimate, even routine, source of guidance for American adjudication; why not the considered judgment of a competent foreign tribunal? At the same time, Justice Antonin Scalia offers some reasonable criticisms of how the court has used foreign precedents -- that is, selectively, when foreign law supports results that the court cannot justify based on American authorities alone. As Justice Scalia points out, justices cite foreign precedents in capital cases, where European law is far more liberal than American law, but not in abortion cases, where it is more restrictive.

One doesn't have to agree, in other words, that foreign law has no place in American courts to worry that courts are using foreign law too politically. And one doesn't need to be Chief Justice Taney -- or a South African racist or an aspiring domestic terrorist -- to believe that it would be better if courts did not interpret America's founding documents in light of foreign authorities that postdate them. Justice Ginsburg has a strong case to make without stooping to such insinuations.

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