Wednesday, January 11, 2006

More on Alito and Foreign and International Sources

There is a bit more on foreign and international sources at today's hearings. This from the SCOTUSBlog live blog:

10.43 Coburn says that reference to foreign law undermines democracy and a violation of the Constitution. He thinks its use violates the "good behavior" qualification for judges.

10.41 Alito doesn't think foreign law is relevant either. The framers would be "stunned" to know that the Bill of Rights was to be interpreted by counting what the rest of the world does. The Bill of Rights was meant at the time to give Americans more rights than the rest of the world. There are also a host of practical problems with the use of foreign precedent.

10.40 Coburn doesn't like judicial reference to foreign law, and doesn't think the majority of American like it.

For reference, here are is a rough typology for application of foreign and international law sources in constitutional interpretation, which appears to be the limited context Coburn and Alito are discussing here:

1) Reference to foreign laws in death penalty cases (i.e., what is the standard for determining "cruel and unusual" under the 8th amendment, and should we include non-U.S. trends);

2) Reference to standards and norms created under international treaties to which the U.S. is not a party, or to which the U.S. has appended reservations (e.g., do the treaties tell us anything about what other "cruel and unusual" might mean?); and

3) Reference to the reasoning of international courts or foreign judicial opinions in interpreting constitutional questions (e.g., how have other judges interpreted the meaning of "cruel"?).

They are not talking about in this narrow context questions about the binding nature of certain U.S. treaty obligations, which branch gets to interpret the scope of a U.S. treaty obligation, or whether some treaties create enforceable individual rights. These are very important questions, often implicit in the exchanges at the hearing on questions of executive power.

We have discussed the appropriateness of references and citation to foreign and international law within the 3-part typology on Opinio Juris in the past. These posts have some useful background about the contours of the debate:

Earlier in the year, Julian and I discussed the Scalia-Breyer debate on foreign sources here, here, and here. And our guest Justice Richard Goldstone posited here that Scalia's objection to foreign and international references is one of originalism v. modernism. We also discussed in some detail the Roper v. Simmons case, in which the Court struck down the juvenile death penalty, and the extent to which Justice Kennedy's references in that opinion to foreign practice and international treaties was helpful (Julian here, and my response and reflection on the effect of international and foreign trends on US death penalty jurisprudence here.) Roger discussed the "insidious wiles" here and I responded here; our debate continued here and included a response from Professor Eugene Kontorovich here.

I'll post the full transcript of this excerpt when it becomes available.

Update: In a rare, near simultaneous post, Roger has posted the full transcript in his post above.


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