Finkelman on Foreign Law and American Constitutional Interpretation: A Long and Venerable Tradition

Paul Finkelman, Albany Law School, has posted an article, Foreign Law and American Constitutional Interpretation: A Long and Venerable Tradition. It appeared in the NYU Annual Survey of American Law (2007-2008). The abstract is only a sentence, so here is a snippet from the article's introduction:

I have three main concerns in this article. First, this article offers a correction to the arguments of Justices Scalia and Thomas that the Supreme Court should not use foreign law (except perhaps in interpreting treaties), because it would violate the original intent of the Framers. As this article demonstrates, such a contention is simply wrong. Correcting this inaccurate history is important because the modern Supreme Court often turns to history to explain its interpretation of the Constitution. A number of justices, including Scalia and Thomas, claim to believe in a jurisprudence of original intent. If the Court is going to rely on history, then surely historians must push the Court to offer the best history it can. It serves no good purpose when a justice claims adherence to history and then ignores vast amounts of historical evidence that do not fit with his preferred outcome.

My second point is tied to the first, but goes beyond the 'Framers' intent.' The history of the Court in the eighteenth, nineteenth, and early twentieth centuries demonstrates that the Court often used foreign law to help it decide cases that did not involve treaties. Some of this early use of foreign law was certainly connected to the founding generation and the Framers. Chief Justice John Jay was a key founder of the republic and a co-author of The Federalist Papers, although not technically a framer of the Constitution. Chief Justice John Marshall was not a framer at the Philadelphia convention but was a delegate to the Virginia ratifying convention. After the Founding generation, great jurists, such as Joseph Story, used foreign law. The appeal to history, implicit in the jurisprudence of Justice Scalia, ought to take into account the long history of the Court‟s use of foreign law. Indeed, such use of foreign law might constitute a jurisprudential tool equivalent to stare decisis—it has been legitimized because it has been used for so long and so often by so many different justices.

Third, I argue that because of the nature of the Court‟s historic use of foreign law, it is particularly appropriate for the modern Court to use foreign law to expand the rights of minorities and those with the least power in our society. As I demonstrate in this article, early in our history the Court often used foreign law to suppress liberties. Given this fact, it would be jurisprudential hypocrisy for the Court to turn against the use of foreign law now, when it might be used to protect or enhance liberty and fundamental rights. As the United States continues to grapple with the problems of international terrorism and wars without clear enemies or national boundaries, it is increasingly important for the nation to take into account the standards of treatment and theories of due process and justice found in other nations. Foreign law, international law, and international concepts of justice are particularly appropriate for shoring up or expanding civil liberties in the current age of terrorism.