Should Supreme Court justices adopt foreign courts' views of individual liberties?

Great Debates
1

USA Today gives a balanced analysis of the controversy.

I think Scalia has the stronger argument. It’s appropriate and valuable for the legislative and executive branches to pay attention to other countries. But, the SC is supposed to be interpreting the US Constitution. Using foreign courts gives them yet another excuse to enact their policy preferences through judicial fiat.

Note Scalia’s parenthetical phrase about ignoring countries that the Justices do not agree with. If the Supreme Court were totally consistent, they could rule that torture is NOT “cruel and unusual punishment” because it’s still used in many nations. Of course, that’s purely hypothetical.

It’s noteworthy that Justice Kennedy didn’t need to cite the European Court of Human Rights in Lawrence vs. Texas. There were adequate grounds for his decision in the US Constitution. He went out of his way to emphasize that he was defining basic human rights, not basic US Constitutional rights. In other words, his view seems to be that the US Consitution guarantees whatever human rights this year’s Supreme Court thinks are important.

2

There are many so called “laws” in the USA that are utterly inhumane. The death penalty in general and certainly the death penalty for people who are mentally ill or retarded is certainly one of the most outraging violations of Human Rights.

The problem is that jurisdiction in the USA isn’t structured like it is in other countries. In my opinion this can ony lead ( and does lead) to interpretational jurisdiction based on personal preferences instead of being based on structured jurisdiction and the application of the same laws counting all over the territory, laws bound by restrictions for interpretation incalculated in the laws itself.

I don’t know if I’m clear in making my point here, but the US jurisdictional system in general leaves far too much personal freedom to insert personal preferences and interpretation and laws by judges, and lawyers and States.

Aldebaran.

3

We shouldn’t cite how foriegn sources view the law? Does that include Lord Coke and Blackstone? Scalia cites them all the time; he cited Blackstone in the same opinion the above quotes are from. One jurisdiction will cite as persuasive authority how others have handled or viewed a similar problem within their own laws all the time. Why is that a problem?

4

Well, december, I’ll leave it to those Dopers actually “learned in the law” to delve into its deeper implications, but being around some such persons I have seen instances of a school of thought in law that does seem to take the view that Courts should not limit themselves to what their specific constitutions and laws state, but should be guardians of “What Is Right”. I’m not sure about how far I’d go with that.

Less radically, just as you stated the executive and legislative may refer to others’ experience in order to copy good ideas, there is no real reason the judiciary should not do so, IF said good idea fits in with the Constitution and the Law (easier, for sure, if you subscribe to the “living document” view of the Constitution) . There is nothing constitutionally incompatible about introducing “basic human rights” dicta – unless there’s no grounds whatsoever.

This is NOT, however, the same thing as introducing “foreign fashions and fads”. The undersanding of “rights” elsewhere is as much a product of “fashion and fad” as it is in the USA: it’s the product of a series of (often painful and bloody and prolonged) historic experiences. Since those historic experiences are different, they should not be adopted wholesale or without reflection or adaptation – this is a common problem when discussing “rights” in these fora. But neither should they be excluded or ignored – or scorned as a flavor-of-the-month whim. Quoting them is just as valid as quoting any other source in Law.

In the majority’s defense it could be argued that the “reserved rights” mentioned in the Constitution indeed WOULD include emergent basic human rights that would be, how can we put it, unknown in 1789 but “discovered” as our civilization evolves? (The enumerated rights in the US Constitution tend to be heavily laden in the direction of legal procedural rights and some property rights – the freedoms of speech, worship and association are compressed into a single sentence!)

As to how this clashes with a certain mentality among Americans that paying attention to anything “foreign” (except British Common Law) will be our ruin, that’s another story.

JRD

On preview I notice Aldebaran in danger of falling into the traditional caricature of the internationalist and the americanist lecturing each other on how wrong they are. There IS a norm for interpretation in the USA: if the law is clear and unambiguous, it means what it says, but if it conflicts with a basic-rights protection of the Constitution, it goes in the trash can. But someone has to challenge it based on it causing some harm, the courts can’t just preempt the laws. As to jurisdictions and precedent, hey, it’s a Federalist system operating under Common Law, that’s how it’s SUPPOSED to work. As to the rhetorical device of referring to “so-called ‘Laws’”, that’s cheap. Besides the fact that those ARE laws properly passed by the elected representatives of the people in accordance to the Constitution, that attitude is what fuels the concerns of the likes of Scalia and december, that somehow “outsiders” want to come in and tell us how to run our affairs on their whims.

5

december, in general I do agree with what you say, but your proposition is founded on a quite reasonable misapprehension as to what the job of the courts actually is.

In Justice Holmes’s (?) words, “the job of the courts is to say what the law is,” that is to define how the corpus of law applies to the particular case that has come before the court.

For most of the high-profile cases that reach SCOTUS, that question will revolve around the Constitution and its applicability to the statute(s) under which the case is brought. But even for SCOTUS, much of its routine work deals with statutory construction – what did Congress, back in 1946, mean when they put this particular clause in this statute, and how does that influence the contentions of the two parties to this case?

Because that abstract corpus of “the law” includes not merely the Constitution and statutes and regulations adopted in accordance with it, but the common law, the principles of equity, the case law devised over 200 years of American jurisprudence, it will not always be delimited to easily-referenced codified “laws” – the Constitution, the U.S. Code, the C.F.R., and so on, together with applicable state legislation.

In dealing with a question about the writ of coram nobis, for example, it would be entirely appropriate for Justice Thomas to reference Blackstone or Grafton, the British jurists from before the revolution, for their understanding of the applicability of common law writs. That is, for better or worse, a part of our law system.

Likewise, for a court to take judicial notice of what another country has done, not as strict precedent but as a means of assessing what the public mind is, is by no means improper. Such analysis should be in the form of dicta rather than rulings, IMHO, but it can help to guide the doing of justice under our system of law.

6

Given that the Suriyas and Shari-a advocate execution for a myriad of crimes how can you say this and still pretend to be a Muslim?

7

Dogface: Given that the Suriyas and Shari-a [sic] advocate execution for a myriad of crimes how can you [Aldebaran] say this [i.e., oppose the death penalty] and still pretend to be a Muslim?

This is not only a hijack but an illogical hijack. There are plenty of Christians and Jews who oppose the death penalty even though Biblical law (and some modern interpretations, e.g., the Christian Reconstructionist theology) prescribe it: does that invalidate their Christianity or Judaism?

8

Actually, Scalia doesn’t. There are two types of authority in the legal arena, controlling and persuasive. Controlling authority are (i) the federal and state constitutions (depending on whether it is a federal or state issue); (ii) federal and state law; (iii) federal and state regulations; and (iv) on-point prior decisions by a higher court.* Controlling authority states what the law is, and it cannot be gainsaid by the court.

Persuasive authority, OTOH, is anything that it persuasive. It may be a learned volume by the Dean Emeritus of Stanford Law School through the witty profundities of Mark Twain. A traditional source of persuasive authority is court rulings from other jurisdictions. There is nothing new or unusual here.

So long as the Supremes do not feel that they are obligated to follow the holdings of, for example, the European Court of Human Rights, they are certainly allowed to consider those holdings when making their determination.

For Scalia to raise this issue is hypocritically laughable. He was in the Bowers v. Hardwick majority, and that decision depended heavily on foreign persuasive authority. Scalia, as usual, is saying "you CAN’T do that if I disagree with the result.

Finally, Poly and Pravnik, reference to Blackstone, et al., is not quite the same as reference to a modern ECHR decision. Early post-colonial jurisprudence (and IIRC, an early federal statute) adopted (pre-1776) British common law as binding on the US. Blackstone and his ilk are, by tradition, integral to British common law.

Sua

9

It’s not quite the same thing, but I think you can see one from the other in that they’re both secondary and persuasive authority. Scalia certainly can’t believe Blackstone or the British common law of centuries past concerning the finer points of distinguishing between “lunatics”, “imbeciles” and “idiots” to be any more mandatory authority than the ECHR on modern SCOTUS constitutional decisions when he extensively quotes it in Atkins v. Virginia. Sure, one is historical to our own system and one is contemporaneous to it, but neither one is exactly what you would call binding precedent.

10

Before we get too far afield, let’s remember that the Texas Sodomy case was a Substantive Due Process decision. Due Process is a singularly amorphous concept that is subject to constant revision and change, Substantive Due Process is even more so. The question before the court in a Substantive Due Process matter is:

Does the government have a legitimate interest in managing this behavior, and

Does the course chosen by the government in fact manage the behavior without managing stuff the government has no interest in?

As I understand the Texas case the majority said that the government had no legitimate interest in managing consensual, adult, private, non-commercial, non-incestuous sex between competent persons. Thus, the majority of the Court said that there was no “nexus between act, the prohibition and a state interest.” Justice Thomas apparently thought that there was a legitimate interest but that it was silly to try to manage it. Justice O’Conner seemed to think that it was an equal protection case and that Texas ought not to prohibit to women alone and men alone what it allowed women and men together to do. It is the cynics reading that Scallia and Renquist J and CJ were perfectly content to have the State of Texas in peoples’ bedrooms. The fundamental ruling, however, was that the government had no legitimate interest in what goes on in peoples sex lives provided they don’t scare the horses.

I suppose a Supreme Court Justice has the power to just pull out of his ear the conclusion that a case presents a situation in which the government is over the line that separates private concerns from state concerns. It is always helpful to be able to pull out some examples that show that other prestigious or authoritative bodies come to the same conclusion. This brings us to SuaSponte’s point about persuasive and controlling precedent and authority. The decisions of European Courts on the sodomy issue are persuasive, nothing more and nothing less. The Sup Ct’s reference to European decisions is simply a debating point. It hardly marks the onset of one world government, the usurpation of US sovereignty or the ascendancy of those European radical social thinkers in US Constitutional Law.

11

Dogface,

  1. Can you explain what you mean with “suryas”?

  2. Can you tell me what the Shari’a is and how it is implemented and/or incorperated in the laws in each of the 50 states where the majority of the population is Muslim. And where exactly you find death penalty described?

Thank you.

Aldebaran.

12

I think it’s rather simple. The supreme court can use whatever it wants to support its constitutionally-based decision. You can bet that Scalia would have no problem citing to the Vatican and all the countries on the planet that outlaw abortion were he to write the lead opinion overturning Roe v. Wade.

As long as the SCOTUS doesn’t say “because of what the canadian supreme court held, we hereby follow.”

13

There is the doctrine of *stare decisis[/i which weighs heavily on decision making, especially when confronted with whether to uphold what has previously been considered protected liberty.

After all,

“Liberty finds no refuge in a jurisprudence of doubt.”

14

Sua Sponte pretty much covered it. Not much more to it.

15

Bowers vs Hardwick was decided on June 30, 1986. You’ll forgive my poor legalese, but White, Burger, Powell, Rehnquist and O’Conner were togrther on the majority opinion and Blackmun, Brennan, Marshall and Stevens dissented.

Scalia joined the Court on Sept. 26, 1986.

16

I knew that. :o

I withdraw the charge of hypocrisy. Mea culpa.

Sua