Scalia on Comparative Constitutional Law

[David Cruz]

On Thu, 17 Aug 2000, John Rogers wrote:

> Shubha Ghosh wrote:
> > [snip    A] colleague mentioned that
> > Justice Scalia is on the record saying that U.S. constitutional law
> > jurisprudence cannot learn anything from the experience of other
> > countries.  Although this position does not surprise (nor necessarily
> > disturb) me, I was wondering if anyone could direct me to the sourceof
> > the statement and cites to any responses/critiques.
>
> It's probably an exaggerated reference to footnote 1 of Stanford v.
> Kentucky, 492 U.S. 361 (1989).  [snip]

I would have thought it a reference to Printz v. U.S., 512 U.S. 898
(1997).  There, in invalidating part of the Brady Act on separation of
powers grounds (no commandeering of state executive officers) Justice
Scalia wrote for the majority:  "Justice BREYER's dissent would have us
consider the benefits that other countries, and the European Union,
believe they have derived from federal systems that are different from
ours.  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. . . .

. . . .  The fact is that our federalism is not Europe's.  It is `the
unique contribution of the Framers to political science and political
theory.'  United States v. Lopez, 514 U.S. 549, 575, 115 S.Ct. 1624, 1638,
131 L.Ed.2d 626 (1995) (KENNEDY, J.,concurring) (citing Friendly,
Federalism: A Forward, 86 Yale L.J. 1019 (1977))."

-David B. Cruz, USC Law (Cal.)