Where's the Foreign Law Beef? .:. grubbykid.com

Where's the Foreign Law Beef?

Orin Kerr has an interesting short blurb about citing foreign law in the course of interpreting the U.S. Constitution. Orin's main concern is this paragraph from law professor Michael J. Kelly critique of Justices Scalia and Thomas:

Perhaps this intellectual curiosity is exactly what Scalia and Thomas rail against [when they object to citing foreign law]. Scalia because he is afraid of the weaknesses it could reveal in his Originalist philosophy; Thomas because he has no intellectual curiosity.

I agree that attacking Justice Thomas' intellectual curiosity might not be right, but if you look at Kelly's arguments as a critique of a small portion of conservative strategy, Orin misses the larger point; namely, the continual attack on the judiciary by Evangelical Christians and conservatives. The trope of "citing foreign law" seems to be a conservative talking point du jour on this front - especially the call to impeach Justice Steven Breyer from the bench for, in their view, citing foreign law. In a word, nonsense.

This is a classic Bushism wedge issue which is blown out of proportion far larger than which exists in reality - just like last year's liberals are killing Christmas foolishness. This is the classic conservative tactic of attacking the gaps - which just so happens to be exact same method Evangelical Christians and conservatives attack evolution and science. Just like the Activist Judges non-issue.

Yet, this just so happens to be an issue where I can tentatively agree with some points from Scalia and Thomas; namely, that formally citing foreign judicial law and precedents undermines our sovereignty. If the Constitution allowed the use of foreign law, it would explicitly allow this. Similarly, the Congress would pass laws to this effect. Yet we incorporated English Common law, and continue to use it to this day in judicial matters.

But that's the point, right? Congress or the Constitution has to give the judiciary powers to use foreign law. Yet, people forget the simple fact that Congress has authorized the Federal Judiciary to use foreign case laws. The US is bound by Treaties (over 500 them) which forces the US to deal with International law and sometimes foreign law. In fact, the article which Orin takes great umbrage to elaborates extensively on this point.

But step back now: conservatives - especially of the free-market fetish flavor - have to "Dance With the One What Brung Ya." If you consistently push for an integrated global network of free trade, interdependence of both political institutions and judicial decisions are an unavoidable effect. While we thankfully haven't reached a point where the World Trade Organization can unilaterally declare important judicial rulings void, this scenario is a logical conclusion of unfettered global free market economy. Ironic that free market Republicans are sowing the field of which they complain so loudly about.

In the end, where exactly is the beef here? Besides a carefully concocted wedge issue, this critique of judges using foreign law just doesn't hunt. But it is an interesting question nonetheless, which will continue to keep laity (as myself) and lawyers busy.

Where's the Foreign Law Beef?

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