This is Ninoville's transcription of remarks made by Justice Scalia at the American Enterprise Institute 2/21/06; C-SPAN is carrying the video here. This text is RC1.2; please e-mail us with corrections and clarifications.

Update 1: a handful of corrections added, thanks to pointers from readers of the Volokh Conspiracy.

International law in American Courts

Thankyou Chris, I appreciate that introduction, which was mercifully short. And I do indeed recall with great fondness my years here at AEI. It was a wonderful time, there were some great people here -- Irving Kristol, Bob Bork, Jude Wanniski; it was a wonderful stay as a resident scholar.

I am talking today about the subject of the use of foreign law in American judicial opinions. Most of what I will have to say is unfavorable to the use of foreign law, so I feel that I should begin by pointing out that I am not a xenophobe. I have nothing against foreign law, and indeed, in my years as a law professor, i used to teach foreign law; one of my subjects was comparative law. And I do believe that comparative law might indeed well be made a mandatory subject in United States Law schools, because I believe that, just as you do not understand your own language until you have taken some foreign language - be that latin, German, whatever - so also I think you don't understand your own legal system until you see how ordering of the same matters could be done in a different way. The only way to appreciate the distinctiveness of your system, what drives it, is to examine some other system.

Moreover, I do not take the position that foreign law is not ever, never ever relevant to American judicial decisions. It sometimes is, for example, in the interpretation of treaties. The object of treaties is to have nations agree on a particular course of action, and if I'm interpreting a provision of a treaty which has already been interpreted by several other signatories, I am inclined to follow the interpretation taken by those other signatories, so long as it's within the realm of reasonableness. I mean, if they've taken an absolutely unreasonable interpretation, of course I wouldn't follow it. But where it's within the bounds of the ambiguity of the bounds contained in the text, I think it's good practice to look to what other signatories have said, otherwise you're going to have a treaty that's interpreted different ways by different countries, and that's certainly not the object of the exercise. I also think that foreign law is sometimes relevant to the meaning of an American statute; for example, if the statute is designed to implement a treaty provision, the interpretation of that treaty provision by foreign courts is relevant to what the treaty means, and hence, relevant to what the American statute implementing the treaty means.

In other cases, moreover, the issue that arises under the statute depends upon foreign law. We had a case a few terms ago that involved the question of whether, under a United States statute, a corporation organized in the British Virgin Islands was a "citizen or subject of a foreign state," that was the American statute [JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., 536 U. S. 88 (2002) - ed.]. Well, I couldn't decide that question without consulting British law as to whether a corporation in the British Virgin Islands was a citizen or subject of Britain! Another example of the same phenomenon: the Foreign Sovereign Immunities Act permits suit against foreign sovereigns for property taken in violation of international law. Well, we had a case a few terms ago, involving the seizure of some valuable paintings by the Nazis [Republic of Austria v. Altmann, 541 U. S. 677 (2004)]. Well, obviously whether the person who is seeking to have the paintings restored was entitled to that or not depended on whether the person owned the paintings - and that question was a question of Austrian law, so we obviously had to consult Austrian law for that purpose.

And finally, I think foreign law can also profitably be discussed in opinions of United States Courts where it is consulted in response to the argument that, "if you interpret it this way, the skies will fall" - you know, predictions of disaster if you rule a certain way. Well, you can look to foreign law and say "well, they did this in Germany, and the skies didn't fall." That's certainly a very valid use of foreign law [cf. remarks of Justice Breyer here - ed.].

But those are not really the issues that I think people are concerned about; I think that people are concerned principally about the use of foreign law in the interpretation of the United States Constitution. And even there, I have to tell you, I cannot say that it is never relevant. To tell you the truth, I think it is relevant probably more than most people on the Supreme Court. Of course, the foreign law I think is relevant is very old foreign law -- [laughter] -- very old English law. Because what is meant by the terms of the Federal constitution is dependent upon what Englishmen in 1791 considered to be due process of law, or what they considered to be cruel and unusual punishment. So I use foreign law all the time - but it is all very old English law. What about modern foreign legal materials?

Well, that is where I get off the boat. It is my view that foreign legal materials can never be relevant to an interpretation of - to the meaning of - the United States Constitution. Sometimes, the Supreme Court seems to have agreed with this view; for example, in a 1997 case called Printz v. United States [521 U.S. 898 (1997)], a case deciding whether the federal government could press state law officers into service to administer a federal statute - a statute that provided that state sheriffs would have to do some paperwork for the implementation of the federal law - the court rejected as irrelevant Justice Breyer's assertion that Switzerland, Germany and the EU all provide that the constituent states must themselves implement many of the law adopted by the central federation. The court's opinion rejected that citation of foreign law, saying the following: "we think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one." In other cases, however - in many other cases - opinions for the court have used foreign law for the purpose of interpreting the constitution.

The first such case I'm familiar with was in 1958, a case involving the Eighth Amendment, that is the cruel and unusual punishments clause: in Trop v. Dulles [356 U.S. 86 (1958)], the court held that the eighth amendment forbids the forfeiture of citizenship because, inter alia, "[t]he civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime." Reliance upon foreign law has been made with increasing frequency in Eighth Amendment cases; in Coker v. Georgia [433 U.S. 584], a 1977 case, the court noted that, "out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue." In Enmund v. Florida [458 U.S. 782], a 1982 case, the court noted "the doctrine of felony murder" - that's murder committed in the course of a felony was made a capital crime under the laws of several states - "has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe." In a 1988 case, Thompson v. Oklahoma [487 U.S. 815], the court noted that "other nations that share our Anglo-American heritage, and by the leading members of the Western European community" oppose the death penalty for a person less than sixteen years old when the crime was committed. I must also interject that those countries also opposed the death penalty when the person was more than sixteen years old, but nevermind. And in Atkins v. Virginia [536 U.S. 304], decided in 2002, the Court thought it relevant that, "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." And that was relevant to the Court's interpretation of our Eighth Amendment.

Recently, the Court has expanded the use of foreign law beyond the area of the eighth amendment. In Lawrence v. Texas [539 U.S. 558], the Court relied upon action of the British Parliament and a decision of the European Court of Human Rights in declaring that laws punishing homosexual conduct were unconstitutional under the American Constitution. And, of course, individual Justices have urged the relevance of foreign law in other cases as well.

I expect, or rather, I fear, that the Court's use of foreign law will continue at an accelerating pace. I think so for three reasons.

First, because the "living constitution" paradigm for the task of Constitutional interpretation prevails on the court, and indeed, in the legal community generally. Under this view, it is the task of the court to make sure that the current constitution comports with as we have put the point in the Eighth Amendment, "the evolving standards of decency that mark the progress of a maturing society." Thus, a constitutional right to an abortion, which assuredly did not exist during the first few centuries of our country's existence, does exist today. Likewise, a constitutional right to homosexual conduct. Of course, I disagree with this living constitution approach, but that is not my purpose here today, to debate originalism. But rather, my point is that, once you assume the power to revise the constitution to keep it up to date, then the criticism voiced by the court in Printz, which I quoted earlier -- that "we think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one" -- no longer has any bite: you are engaged in the process of writing a constitution, and thus there is no reason whatsoever not to consult foreign materials in doing so!

I suppose it could be argued that you can be a living constitutionalist who wants to create only a new American constitution - sort of a living constitutionalist who doesn't care what foreign countries think, but wants to update the American Constitution according to the contemporary mores of Americans. Well, that's certainly a possible position, but it is not, however, one that I think is likely to prevail, because I do not think very many living constitutionalists are likely to be what you might call "chauvinistic living constitutionalists" - that is, dedicated to effecting only those changes that the American people desire. The American people can make their will well enough known by creating new rights legislatively, or in the last analysis by amending the Constitution per Article V. One who believes that it falls to the courts to update the list of rights guaranteed by the constitution tends to be one who believes in a platonic right and wrong, which wise judges are able to discern when the people at large cannot. In fact, it has occurred to me that this notion of an overarching moral law that is binding upon all of the nations of the world -- and with which all the judges of all of the nations of the world are charged with interpreting -- has replaced the common law. Those of you who are lawyers will remember that, in the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere. Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong! Because there really is a common law, and it's our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called "the brooding omnipresence in the sky" of the common law. Well, I think we've replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions -- whether there's a right to an abortion, whether there's a right to homosexual conduct, what constitututes cruel and unusual punishment, and so on -- surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think. And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another's opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . . It's quite surprising to me, but I am sure that this is where we are. There really is a brotherhood of the judiciary who indeed believe that it is our function as judges to determine the proper meaning of human rights, and what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. And that's why I think, if you are a living constitutionalist, you are almost certainly and internationalist living constitutionalist.

The second reason that international law is likely to be used increasingly in our living constitution decisions is Sir Edmund Hillary's reason: because it's there. Let's face it: it's pretty hard to put together a respectable number of pages setting forth, as a legal opinion is supposed to, analytical reasons for newly imposed constitutional prescriptions or prohibitions that do not at all rest -- as the original bill of rights did not at all rest -- upon logical or analysis, but rather upon one's moral sentiments, one's view of natural law, one's philosophy or one's religion. How to explain logically and analytically why government regulation of sexual freedom by rendering bigamy or adultery or incest a crime is perfectly constitutional, while its limitation of sexual freedom by making homosexual conduct a crime is not. Decisions on such matters, whether taken democratically by society or undemocratically by courts, have nothing to do with logic. So without something concrete to rely on, judicial opinions would be driven to rely on such philosophic or poetic explanations as "[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." [Planned Parenthood v. Casey, 505 U.S. at __; quoted in Lawrence, 539 U.S. at 574]. Surely, not a happy state of affairs for a law court. It will seem much more like a real legal opinion if one can cite authority to support the philosophical, moral or religious conclusions pronounced, and foreign authority can serve that purpose. You can cite the name of the case, and look, it has letters and numbers after it, it's "33 Uganda Law Reports" whatever, and -- [laughter] -- it looks very legal.

The third reason that foreign law will be increasingly used is an intensely pragmatic one. Adding foreign law to the available box of legal tools is enormously attractive to judges, because it vastly increases the scope of their discretion. In that regard, it is much like legislative history, which ordinarily contains something for everybody: it can be used or not used, used in one part but not in another, deemed controlling or pronounced inconclusive, depending upon the result the court wishes to reach. Consider: in Lawrence, the Court cited European laws to strike down sodomy laws. But of course, Europe is not representative of the whole world. Zero out of fifty countries in Europe prohibit sodomy -- not necessarily, by the way, because of the democratic preferences of those fifty countries, but because of the uniformity imposed by the European Court of Human Rights -- but thirty-three out of fifty-one countries in Africa prohibit it. Eight of of forty-three countries in the Americas. Twenty-seven out of forty-seven Asia-Pacific countries. And eleven out of fourteen countries in the middle east. Thus, the rest of the world, aside from Europe, is about evenly split on the issue. The Court's reliance on foreign sources has also been selective as to when foreign sources have been consulted at all. Not only which foreign law, but whether you consult it. For example, although the United States was in the minority in allowing states to prohibit sodomy, it was not in the minority in allowing states to restrict abortion. According to the United Nations, the United States is now one of only fifty-three countries classified as allowing abortion on demand, versus one hundred and thirty-nine countries allowing it only under particular circumstances, or not at all. Among those countries the UN classified - this is in 2001 - as not allowing abortion on demand were the United Kingdom, Finland, Iceland, India, Ireland, Japan, Luxemburg, Mexico, New Zealand, Portugal, Spain, Switzerland and virtually all of south america. Yet the court has generally ignored foreign law in its abortion cases. Casey does not mention it all; Roe discusses only modern British law - which, in any event, is more restrictive than what Roe held. I will become a believer in the ingenuousness - though never in the propriety - of the Court's newfound respect for the wisdom of foreign minds when it applies that wisdom in the abortion cases.

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I hope I have made it clear that my belief that the use of foreign law in our constitutional decisions is the wave of the future does not at all suggest that I think it's a good idea. I do not. The men who founded our republic did not aspire to emulating Europeans, much less the rest of the world.

I wrote an opinion for the Court a few terms back [Crawford v. Washington, 541 US 36 (2004)], overruling an earlier case [Maryland v. Craig, 497 U.S. 836 (1990)], which had held that the confrontation clause is satisfied so long as the unconfronted testimony - that is to say, hearsay testimony - has "particularized guarantees of trustworthiness." The opinion pointed out that that the confrontation clause was designed precisely to prevent a procedure considered trustworthy by continental European nations, and others that followed the civil law tradition. "Examinations of witnesses upon interrogatories," wrote John Adams, "are only by the civil law; interrogatories are unknown at common law, and Englishment and common lawyers have an aversion to them, if not an abhorrence of them." As recently as 1993, for example, France was still defending its use of ex parte testimony before the European Court of Human Rights, arguing that the defendant's accuser in a drug trafficking case had a "legitimate interest in remaining anonymous," and that the defendant's rights were adequately protected so long as "the judge held hearings which enabled him to satisfy himself" that the witnesses stood by their statements. Should we have loosened up our confrontation clause, in deference to foreign opinion on this subject?

France permits suits against the executive branch only in an executive branch court called the conseil d'etat, whose members are appointed and promoted by the executive, and who regularly alternate between performing executive functions and adjudicating the lawfulness of other people's performance of executive functions. Other European countries have somewhat similar systems, although the extent of their participating in executive functions may be more limited. This is a practice that Tocqueville contrasted unfavorably with our own, as long ago as 1835. Should we change our mind?

In No. 46 of The Federalist, James Madison speaks contemptuously of the governments of Europe who are "afraid to trust their people with arms." Should we revise the Second Amendment because of what these other countries think?

In November of 2002, the Council of Europe approved what was called "an additional protocol to the convention on cybercrime," which would make it illegal to distribute anything online which "advocates, promotes or incites hatred." A spokesman for the United States Department of Justice said - quite correctly - that this country could not be a party to such a treaty because of the First Amendment. If all of Europe thinks that such a provision does not unduly limit speech, should we reconsider? And I could go on.

If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way that Europeans are - and nothing has changed. I dare say that few of us here would like our life or liberty subject to the disposition of French or Italian criminal justice, not because those systems are unjust, but because we think ours is better. What reason is there to believe that other dispositions of a foreign country are so obviously suitable to the morals and beliefs of our people that they can be judicially imposed through constitutional adjudication? And is it really an appropriate function of judges to say which are and which aren't? I think not. Thank you. [applause]