Wednesday, February 22, 2006

Justice Scalia on Foreign Law and the Constitution

In a speech at the American Enterprise Institute on Tuesday, Justice Scalia took aim once again at the use of foreign law to interpret the Constitution. While freely admitting that 18th Century English law is relevant to that exercise, he denied that modern foreign legal materials ever are. And in response to a question from Professor Julian Ku, he extended his position to reject the relevance of international law as well.

As he did at the 2004 annual meeting of the American Society of International Law, Justice Scalia pointed out that foreign law is often invoked selectively. Yes, a great many nations do not allow the execution of minors, but a great many also criminalize abortion. Scalia also linked the use of foreign legal materials to what he called the “living Constitution paradigm.” Invoking Justice Holmes, he characterized the law of international human rights as the new “brooding omnipresence in the sky,” portending a return to what Scalia called the “bad old days before Erie.”

During a panel discussion that followed Justice Scalia’s speech, Tom Goldstein (SCOTUSblog) suggested that the current debate over the use of foreign law is a proxy for the debate over originalism. Breyer and other believers in the “living Constitution” are willing to look to foreign materials to help them fashion solutions for modern problems, while Scalia rejects such materials because he believes that all the answers must be found in the original understanding.

If Goldstein is right, a curious thing about this debate is that rejection of foreign and international law is associated with originalism. The “bad old days before Erie” included the 18th Century world of the Framers. They believed in a “brooding omnipresence in the sky” called the general common law, of which the law of nations was a part. The original understanding was that this law of nations was part of U.S. law in myriad ways, and as Professor Sarah Cleveland has shown in her thoroughly researched article “Our International Constitution”, the use of international law to interpret the Constitution stretches back to the Marshall Court.

Perhaps, then, it is really Justice Breyer who is being faithful to the original understanding of foreign and international law’s place in our constitutional system and its relevance to constitutional interpretation and Justice Scalia whose break with that tradition represents--dare I say it--“living Constitutionalism.”


Blogger Thomas said...

"[A] curious thing about this debate is that rejection of foreign and international law is associated with originalism. The ‘bad old days before Erie' included the 18th Century world of the Framers. They believed in a ‘brooding omnipresence in the sky' called the general common law, of which the law of nations was a part. The original understanding was that this law of nations was part of U.S. law in myriad ways[.]"

Sir Henry Maine (1822-1888), renowned British lawyer and legal scholar, would agree.

"In order that you may convince yourselves what might be the consequences of demanding a legislative sanction, or a sanction derived from an authority on a level with that of a modern legislature, for the rules of International Law, I recommend you to compare the view of it taken by the statesmen and jurists of the United States of America with that to which this country might have committed itself; and from which it was delivered by the direct intervention of Parliament. The United States are particularly worth examining in regard to the point before us, because they were an instance of a new nation deliberately setting itself to consider th[e] new obligations it had incurred by determining to take rank as a state. Italy is another and a later example, and there have been some others in South America, but all these societies...were greatly influenced by the example of the American Federal Union.

"The doctrines which the United States adopted may be gathered from some very valuable volumes which the American Government has quite recently caused to be published, and to which I will presently call your attention. ... You will have to recollect that the question at issue between the English and Americans lawyers was less what is the nature of International Law, and how it arose, than the question how, and to what extent, have its rules become binding on independent states. These questions are often confounded together, or found to be indissoluble, as will be plain from the extracts which I am about to read."

"It must be clear to you, I think, that writers who adhere to these opinions are not likely to trouble themselves greatly with the question of the original obligatory force of International Law. If the Law of Nations be binding on states considered as moral beings on account of its derivation from the Law of Nature or of God, states when in a healthy moral condition will defer to them as individual men do to the morality of the Ten Commandments....But now let us turn to the four volumes of the American International Digest edited by Dr. Francis Wharton. It is entitled, "A Digest of the International Law of the United States," and it consists of documents relating to that subject issued by Presidents and Secretaries of State, of the decisions of Federal Courts, and of the opinions of Attorneys-General. Among the propositions laid down in these volumes you will find the following, all of them accepted by the American Federal Government[:]

"The law of the United States ought not, if it be avoidable, so to be construed as to infringe on the common principles and usages of nations and the general doctrines of International Law. Even as to municipal matters the law should be so construed as to conform to the Law of Nations, unless the contrary be expressly prescribed. An Act of the Federal Congress ought never to be construed so as to violate the Law of Nations if any other possible construction remains, nor should it be construed to violate neutral rights or to affect neutral commerce, further than is warranted by the Law of Nations as understood in this country."


"The Law of Nations is part of the Municipal Law of separate states. The intercourse of the United States with foreign nations and the policy in regard to them being placed by the Constitution in the hands of the Federal Government, its decisions upon these subjects are by universally acknowledged principles of International Law obligatory on everybody. The Law of Nations, unlike foreign Municipal Law, does not have to be proved as a fact. The Law of Nations makes en integral part of the laws of the land. Every nation, on being received at her own request into the circle of civilised government, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws, and usages which have obtained currency amongst civilised states, and which have for their object the mitigation of the miseries of war. International Law is founded upon natural reason and justice, the opinions of writers of known wisdom, and the practice of civilised nations."

"Here you see that according to American doctrine International Law has precedence both of Federal and of Municipal Law, unless in the exceptional case where Federal Law has deliberately departed from it. It is regarded by the American lawyers as having very much the same relation to Federal and State Law as the Federal Constitution has, and this no doubt is the reason why in so many famous American law books Constitutional Law and International Law are the first subjects discussed, International Law on the whole having precedence of Constitutional Law.

"The principle on which these American doctrines of International Law repose is, I think, tolerably plain. The statesmen and jurists of the United States do not regard International Law as having become binding on their country through the intervention of any legislature. They do not believe it to be of the nature of immemorial usage, 'of which the memory of man runneth not to the contrary.' They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilised nations. This view, though not quite explicitly set forth, does not really differ from that entertained by the founders of International Law, [e.g., Grotius, Vatel] and it is practically that submitted to, and assumed to be a sufficiently solid basis for further inferences, by Governments and lawyers of the civilised sovereign communities of our day. If they put it in another way it would probably be that the state which disclaims the authority of International Law places herself outside the circle of civilised nations."

Henry Maine, International Law, Lecture II: Its Authority and Sanction, (1888)

available at The Avalon Project

2/24/2006 8:14 AM  
Blogger J&D said...








7/03/2009 10:35 AM  
Blogger poston said...

There are ed hardy shirts
,pretty ed hardy shirt for men,

ed hardy womens in the ed hardy online store

designed by ed hardy ,
many cheap ed hardy shirt ,glasses,caps,trouers ed hardy shirts on sale ,

You can go to to have a look ,you may find one of ed hardy clothing fit for you
Top qualitymen's jacket,
These cheap jacket are on sale now,you can find
north face jackets inmage on our web
Ralph Lauren Polo Shirtsbuberry polo shirts

Authentic chaussure puma
chaussure sport
And chaussure nike shoes
Come here to have a look of our Wholesale Jeans
Many fashionMens Jeans ,eye-catching
Womens Jeans ,and special out standing
Blue Jeans ,you can spend less money on our
Discount Jeans but gain really fine jeans, absolutely a great bargain.


7/08/2009 5:37 AM  
Blogger The Jack said...

Thanks ever so much, very useful article. If you do not mind, please visit my article related to pandeglang district in Banten, Indonesia at Kenali dan Kunjungi Objek Wisata di Pandeglang or Kenali dan Kunjungi Objek Wisata di Pandeglang second and also Kenali dan Kunjungi Objek Wisata di Pandeglang Objek Wisata Air Terjun Curug Gendang or related to a leadership at Mengembalikan Jati Diri Bangsa and Oes Tsetnoc or Oes Tsetnoc the second and our hard work at Kerja Keras Adalah Energi Kita that's right Kerja Keras Adalah Energi Kita, and Kenali dan Kunjungi Objek Wisata di Pandeglang Memasuki Babak Akhir also Objek Wisata Taman Wisata Alam Carita, Kenali dan Kunjungi Objek Wisata di Pandeglang, or Kenali dan Kunjungi Objek Wisata di Pandeglang, also Kenali dan Kunjungi Objek Wisata di Pandeglang, or Kenali dan Kunjungi Objek Wisata di Pandeglang, also Kenali dan Kunjungi Objek Wisata di Pandeglang, or Kenali dan Kunjungi Objek Wisata di Pandeglang, also Kenali dan Kunjungi Objek Wisata di Pandeglang, or Kenali dan Kunjungi Objek Wisata di Pandeglang, very smart thank you!

10/29/2009 1:48 AM  
Blogger Daniela said...

Find your great Travel News and sing the songs at Free Song Lyric or you can watch the drama at Korea Drama Online one of great korea drama is A Love to Kill if you go to travel to Indonesia learn Learn Indonesia Language first! And find your home cari rumah or make a blog Belajar membuat Blog find your home again rumah dijual and again at jual rumah then if you want buy a new laptop see the Laptop Price List or you can buy a New Blackberry and then take care your Health & Jewerly.

11/14/2009 10:36 PM  
Blogger zhengbin said...

Other ways to unlock trapped cash thomas sabo is in the form of selling thomas sabo shop silverware, silver flatware, sterling silver thomas sabo jewellery and scrap silver.

10/28/2010 8:41 PM  
Blogger Emma jacob said...

Hey, Really great work, I would like to join your blog anyway so please continue sharing with us,
thermal bags

7/06/2011 6:06 PM  
Blogger eshaa said...

I keep my ideals, because despite everything, I still think people are really good at heart.I found your site from AOL, and it is enlightening. Thank you for providing such an informative message!
celebrity hair transplant

8/13/2011 9:33 AM  
Blogger Den Hamphery said...

A healthy diet is not about strict nutrition philosophies, staying extremely thin, or depriving yourself of foods you love. Rather it is to get that good to have more energy and you keep healthy as possible.
Get Natural Supplements to be healthy.

9/27/2011 2:56 AM  
Blogger Sabrina Taylor said...

This is a great blog,I like this post it is very good and informative. I am sure that this post will be very much helpful for people.
post free classified

10/01/2011 12:36 PM  
Blogger beautifuls said...

Buy cheap Classic Cambridge Satchel Music Cambridge Satchel Designer Cambridge Satchel Metallic Cambridge Satchel and Limited Cambridge Satchel with cheap price and high quality. Fluro Orange Cambridge Satchel

3/08/2012 1:59 AM  
Blogger david Rice said...

I certainly enjoy reading all that is posted on your blog. It's easy to read, the content is good, and you’re an educated writer unlike most of the blogs.
buy dissertation online | Dissertation Writing

3/19/2013 4:33 AM  
Blogger jim carry said...

Thank you for this post. I am new to your blog and get really very nice. I will keep visiting your blog.
Custom Essays | Custom Essay Writing

3/19/2013 8:49 AM  
Blogger johny peterson said...

Great Blog here my friend! Very informative, I appreciate all the information that you just shared with me very much and I'll be back to read more in the future.
Custom Essay Writing Services

5/30/2013 7:59 AM  
Blogger Advin sam said...

I have found this article very exciting. Do you have any others on this topic? I am also sending it to my friend to enjoy your writing style. Thanks
Online Shopping in Pakistan

6/09/2013 5:32 PM  
Blogger alex said...

Super-Duper site! I am loving it!! Will come back again - taking you feeds also, Thanks.
Writer Services

7/26/2013 2:29 AM  
Blogger saranya zinavo said...

You gave great points here. I found nearly all people agree with your blog.
V-neck tshirts

12/03/2013 5:08 AM  
Blogger Hamza Shahzad Shahzad said...

Thanks for the article. Very interesting

7/25/2014 4:35 PM  
Blogger Stem Cell Therapy said...

Great information, you have a wonderful blog and an excellent article.
Platelet Rich Plasma Therapy
Elbow Surgery
Hip Replacement Surgery
Shoulder Surgery
Knee Replacement Surgery
Stem Cell Therapy

4/21/2015 4:01 AM  
Blogger Zaki Anwar said...

Nice Post. It’s really a very good article. I noticed all your important points. Thanks 
Workers Compensation
Pain Treatments
Botox Injections
Epidural Injections
Epidural Lysis Procedure
Facet Blocks
Intercostal Nerve Blocks
Intrathecal Pump Therapy
Intradiscal Electrothermal Therapy
Intercostal Nerve Blocks
Joint Injections
Platelet Rich Plasma
Percutaneous Discectomy
Racz Epidural Neurolysis
Radiofrequency Lesioning
Selective Nerve Root Blocks
Spinal Cord Stimulation
Sympathetic Nerve Blocks
Pain Locations
Arm Pain
Abdominal Pain
Back Pain
Cancer Pain
Chest Wall Pain

4/21/2015 7:37 AM  
Blogger ninest123 Ninest said...

ninest123 08.11
louboutin, nike free, burberry outlet online, michael kors outlet, burberry, nike outlet, louboutin shoes, ray ban sunglasses, chanel handbags, longchamp outlet, michael kors outlet, nike air max, ray ban sunglasses, tory burch outlet, coach outlet, replica watches, coach purses, polo ralph lauren outlet, michael kors outlet, tiffany jewelry, christian louboutin outlet, coach outlet, michael kors outlet, gucci outlet, prada outlet, longchamp outlet, tiffany and co, longchamp, oakley sunglasses, michael kors outlet, jordan shoes, kate spade handbags, polo ralph lauren outlet, true religion jeans, oakley sunglasses, nike air max, coach factory outlet, louboutin outlet, prada handbags, kate spade outlet, oakley sunglasses, michael kors

8/11/2015 2:45 AM  
Blogger ninest123 Ninest said...

new balance pas cher, nike air max, nike roshe run, hollister, michael kors, true religion jeans, north face, true religion jeans, lululemon, sac guess, timberland, longchamp pas cher, ray ban pas cher, sac longchamp, abercrombie and fitch, nike air max, air force, mulberry, burberry, nike free run uk, ray ban uk, lacoste pas cher, north face, ralph lauren uk, michael kors, nike blazer, true religion outlet, oakley pas cher, nike free, hogan, vans pas cher, hermes, air max, nike air max, air jordan pas cher, michael kors, ralph lauren pas cher, hollister pas cher, converse pas cher, tn pas cher, vanessa bruno, louboutin pas cher

8/11/2015 2:49 AM  
Blogger ninest123 Ninest said...

birkin bag, lululemon, timberland boots, nfl jerseys, baseball bats, celine handbags, babyliss, chi flat iron, mac cosmetics, nike air max, longchamp, ferragamo shoes, mont blanc, herve leger, insanity workout, vans shoes, ghd, iphone 6 cases, hollister, valentino shoes, hollister, reebok shoes, jimmy choo shoes, nike roshe, nike roshe, soccer jerseys, wedding dresses, mcm handbags, nike huarache, new balance, instyler, giuseppe zanotti, p90x workout, north face outlet, bottega veneta, abercrombie and fitch, north face outlet, oakley, soccer shoes, nike trainers, asics running shoes, beats by dre

8/11/2015 2:51 AM  
Blogger ninest123 Ninest said...

hollister, ugg boots uk, thomas sabo, ugg boots, lancel, uggs on sale, karen millen, links of london, ray ban, louboutin, ralph lauren, bottes ugg, converse outlet, ugg boots, replica watches, ugg boots, converse, gucci, toms shoes, hollister, coach outlet, nike air max, juicy couture outlet, ugg boots, ugg,uggs,uggs canada, supra shoes, ugg,ugg australia,ugg italia, vans, swarovski crystal, wedding dresses, swarovski, ugg pas cher, pandora charms, montre pas cher, marc jacobs, juicy couture outlet, pandora charms, pandora jewelry
ninest123 08.11

8/11/2015 2:53 AM  

Post a Comment

<< Home