Applying Foreign Law in Constitutional Cases

Justice Scalia on the use of foreign law by American courts:

Our Supreme Court’s reliance on foreign sources has not only been selec­tive in terms of which foreign laws are consulted. It has also been selective as to when foreign law is consulted at all. For example, allowing states to restrict abor­tion is actually a position the U.S. shares with a majority of foreign countries. According to the U.N., the United States is now one of only 53 countries classi­fied as allowing abortion on demand, versus 139 countries that allow it only under particular circumstances, or not at all. Among those countries the U.N. classified as not allowing abortion on demand were the U.K., Finland, Iceland, India, Ireland, Japan, Luxembourg, Mexico, New Zealand, Portugal, Spain, Switzerland, and nearly all of South America. Yet the Court has generally ignored foreign law when justifying its abortion cases.

If there was any thought absolutely foreign to the founders of our country, it was the notion that we Americans should be governed the way Europeans are. In Number 46 of the Federalist, to take just one example, James Madison speaks contemptuously of the governments of Europe which are “afraid to trust the people with arms.” Are we now to revise the Second Amendment because of what these other countries think?

I dare say that few of us here would want 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 the dispositions of a foreign country are so suitable to the morals and manners of our people that they should be judicially imposed through Constitutional adjudi­cation? And is it really an appropriate function of judges to say which foreign laws we pick up, and which we don’t?

I think not.

[HT: www.realclearpolitics.com ]