You Have Questions, I Have Answers
TMcD asks: We've heard a lot of conservative hand-wringing about the use of foreign and international law in interpreting the constitution. The founders would have been outraged, yada yada yada. Here's the question: wouldn't this also have to apply to English common law? Scalia uses common law all the time to explain original intent. Why isn't this offensive? Now, I know that we have a "special relationship" with the Brits and all, but that's pretty recent. At the time of the founding, they were our bitter enemies, with spies and loyalists (sleeper cells) all over the place. Why would we ever use THEIR laws to interpret our own? Damned royalists.
On the other side, if the founders themselves relied on foreign enemy laws, enemy legal theorists (Blackstone), and sometimes even the ideas of philosophical Frenchies (Montesquieu), does that mean that a genuine originalist would be REQUIRED to incorporate European understandings into our Constitution? Just curious.
The common law is different from "foreign" or "international" law in a number of significant respects. Most importantly, originalists and many others believe that the Constitution is properly interpreted as incorporating the common law, as it existed at the time of ratification. In other words, that the framers (and ratifiers) of the Constitution intended the Constitution to be consistent with their common law heritage.
I think that this approach is absolutely correct for certain constitutional provisions. ASIDE: But, interestingly, almost no one thinks that this approach is correct for other provisions. Most significantly, the common law of seditious libel would permit the criminalization of criticism of the government, even when true. I don't know of anyone still holding to that common law interpretation of the First Amendment's scope (i.e., the First Amendment only protects against prior restraints and does not protect speakers from punishment, for political speech, after-the-speech).
Thinking of the common law as the basis for many of the rules embodied in the Constitution, then, one can see why originalists and others have no problem with judges using the English common law to interpret the Constitution. (And here, it's the English common law, not "British.")
To employ a simile, the English common law is like a river that flows into the river of the American river of constitutional law. But denial is a river in Egypt--and so is foreign law.
I would actually go a little further, though. One has to remember what the common law is/was/has always been. The common law is judge-made law. But when judges make law, they make it by [pretending that they are only] finding universal principles of justice and fair play. (Thus, judges don't actually make law, according to the theory.)
Thus, referring to the common law can also be understood as referring to universal principles of justice. And who is going to complain about that?
But "foreign" law is a completely different kettle of fish. First of all, foreign law is not judge-made law, for the most part. Although there are exceptions, most international law is made by legislatures, parliaments, or embodied in international treaties and conventions. All explicitly man-made.
To cut to the chase: the common-law is closer to a natural-law approach to the law's sources, foreign/international law closer to the positivistic/legislation model. Critics of the use of foreign law tend to be more comfortable with a natural law approach. To the extent that they are positivists, they reject the idea that another sovereign's law can bind the sovereign American people, in any way.
Finally, "conservative" critics of the use of foreign law in interpreting U.S. law tend to prefer the policy embodied in eighteenth-century common law much more than the policies embodied in present-day European law. Thinking only of the death penalty, here, eighteenth-century common law would place few limits on capital punishment, but present-day European law would, well, prohibit capital punishment.
Finally-finally, I think that it's a mistake to focus on the British in the 1780s as "the Enemy." That's not how the Framers would have defined things. For the most part, they were proud of their English heritage, and up until the Revolutionary war itself, they would hae described themselves as Englishmen or "British." Indeed, they often tended to perceive themselves as the "true" English, in the sense that they were more faithful to the "ancient constitution" than the corrupt court of the late eighteenth century. So this isn't a matter of the Framers depending on the law of the "Other." It was their law, the law that they had been trained in, if they had legal training.
posted by Number Three @ 3:25 PM
3 Comments:
Thank you, Captain Obvious. But once again, in a rush to demonstrate your historical and legal knowledge, you have fundamentally missed the point.
OF COURSE the founders used the English common law heritage as one foundation for their own law. They also dipped extensively into the writings of European philosophers and legal theorists, and not just Englishmen like Locke and Scots like Hume; they also drew heavily from the writings of Montesquieu (French), Grotius (Dutch), and Vattel (French-speaking Swiss); they looked to ancient examples from Greece, Rome, and medieval Italy; and sometimes they even made reference to the Iroquois Confederacy. They did all this because they saw American law as deriving its legitimacy, at least in part, from its ability to engage long-standing international traditions, adapt those principles where useful and reject them radically when not. American law was not hermetically sealed from outside legal influences; it was, as you note, part of a flowing river. But what this means is that contemporary conservative teeth-gnashing about the uses of internationalism and foreign law in the U.S. is violently ahistorical. More pointedly, it violates that very "natural law" tradition they claim to uphold. Think about it: if human nature is universal and rational, the way to discern eternal principles is to look with empirical rationality at the world as a whole, not to confine oneself to one's own national culture and slavishly follow internal authorities. If we were really to embrace the "natural law" of the founders (rather than its quasi-Catholic deformation in Scalia & Thomas), we would be as obsessed with international examples as the founders themselves were.
Another way to look at the issue is this: today's "originalists" are engaged in a hypocritcal act of anachronistic interpretation. They're projecting a very modern conception of nationalism back to the founding era when such ideas did not really exist; indeed, the predominant legal ideas of that era on "foreign influence" were close to the opposite of what today's so-called originalists posit. One reason I've been thinking about this is because I've recently finished reading Benedict Anderson's Imagined Communities, a seminal text on the historical development of "nationalism" as an idea. And one of his key points is that nationalism, as it came to be understood by late-19th century imperialists in the U.S. and Europe, simply did not exist at the time of the American founding. Our founders were nationalists of a very different stripe, less jingoistic, less racist, less concerned with denying their foreign origins and dependence, and less bent on demonstrating national hegemony.
The "originalist" cons (I prefer "sham originalists", but "cons" has a nice double entendre) want to have their cake and eat it too, but in an impossible way. They want to claim that one and only one foreign source of law (English common law) is legit, because that's the only one the founders used. Freeze frame. Unfortunately, this is (a) false, and (b) deeply misleading even if true. The founders didn't limit themselves to English common law because that's the only source they considered as nationalistically relevant, but they engaged the common law because it was their primary (but not exclusive) point of contact to that river of foreign legal thinking that enabled them to engage in empirical analysis. The fact that the Brits were, in practical reality, their enemies, did not undermine the significance of their experience. (BTW, if you don't think there was a lot of anti-Brit sentiment in the colonies during the 1770s and 1780s, you're just not paying attention; just think about the Jeffersonians.)
On a related note, I just got my latest issue of the New Republic yesterday, and there's a good review in it by Cass Sunstein of John Yoo's new book on presidential power. Interestingly, Yoo argues that the Prez should have absolute war power as commander-in-chief because the founders simply adopted without change the English common law view of executive authority. It seems never to have occured to him that our founders were actively rejecting a Brit-style monarchy, and he appears uninterested in the ample historical evidence (much of which Sunstein offers) that the convention gave war supremacy to Congress precisely to avoid having a Brit executive. So, once again, the sham originalists are projecting their deepest fantasies on the founders and claiming it's mere faithfulness to our historical origins. I was surprised, however, that Yoo so unabashedly embraces, literally, "royalism." A nice microcosm for the entire conservative movement.
Mr. Obvious? That's what I get for answering the question that you asked? I guess next time I should interpret your question as simply a prompt to attack conservative ideas as hypocritical.
But, here, I think that there is something to say for the view that the English common law sheds light on certain interpretive issues. Btw, I also think Yoo's argument on the Framers and executive powers is just plain crazy. But that doesn't discredit the entire originalist case.
You make some good points about natural law, but here, it's important to keep in mind that foreign law can be viewed as evidence of a universal understanding, or it can be viewed as the product of a particular legislative or enacting body. If you think of things in the latter sense, then it is problematic for the courts to employ foreign law in interpreting U.S. law. I find that troubling, myself. But my sense is that U.S. judges refer to foreign law as what lawyers call persuasive authority, only, which means that it informs their thinking but does not dictate a result.
I hate to get into details, but I don't think that I said that there wasn't anti-British sentiment in the 1780s. One should keep in mind that one can disagree with, even dislike, the government of a country and still feel strong cultural affinities for its people.
Em, I don't actually disagree with much you say here (or much of your original answer for that matter, which is why I tried to tart it up, Captain O.), and I have enough nationalist sensibility myself to not want much use of foreign law in interpreting U.S. law. But I do find the issue entertaining for reasons I don't think you do.
Strangely enough, I think that one difference between us is that, even though you're much more liberal than I am, you are more likely to accept the claims of "originalism" at face value and attribute some legitmacy to those who make this their interpretive framework. You dismiss them at the level of their premises, but are happy to let them frolick as they wish in following those premises. I suspect that, of the two of us, I have more natural sympathy toward the ideal behind originalism (or at least the notions of judicial "restraint" and "natural law"), which may be why I'm more offended than you are by its hypocrisy, its internal contradictions, and its rather bald use to cover partisan power-plays. As a result, I tend to focus on how the law serves as a conduit for purely political considerations, rather than seing the law as its own self-contained intellectual universe. So this may be analagous to our views of religion--although you're an atheist and I'm a Christian, I tend to be much harsher on religious hypocrisy and immorality than you are; you enjoy religion as a tourist would. Or maybe our different attitudes on originalism reflect a difference between our training, since you have gone through a process of legal education and professionalization that I have not. Maybe I'm mischaracterizing our perspectives, but I'm curious how you see this.
One point where I would press you on your comments above, however, concerns this idea of how originalists celebrate the legitimacy of "judge-made law" vs legislature-made law. This doesn't make any sense to me. It runs into direct conflict with the rhetoric of people like Bork about the need to tie judges hands with "neutral principles" (not "natural justice," which sounds decidely like a "living constitution") and empower popular legislative bodies, particularly dead ones.
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