Question/a suggestion to the list

[Mark Tushnet]

I've written on this question, with one article forthcoming in 
Minnesota, another in Baltimore, and probably [I hope I can get it 
done] in Albany, so I won't address any but this of Greg Sisk's 
arguments here.  The one that caught my attention was this:

"But to cite to such foreign decisions inevitably leaves the 
impression that they have some authoritative weight."  My 
question is this:  What of citations of law review articles (to 
sharpen the point:  by members of this list, and making 
arguments of law rather than presenting empirical information)?


----- Original Message -----
From: "Sisk, Gregory C." <GCSISK at stthomas.edu>
Date: Thursday, January 12, 2006 9:42 pm
Subject: RE: Question/a suggestion to the list

> On this discussion of the supposedly-manifest benefits of 
reliance on
> foreign law in American constitutional interpretation (if only 
> everyonewould listen and learn), let me play the provocative 
role 
> of nay-sayer and
> thereby take this discussion outside of an echo chamber 
resounding 
> withmutually-affirming responses.  I submit that any 
suggestion 
> that we as the
> educated professorate with a sophisticated appreciation of 
foreign and
> comparative law might succeed in convincing the "local 
people" (i.e.,
> ordinary people without advanced degrees and not working in 
> academia) that
> foreign law should be given regular and considered attention in
> constitutional interpretation is doomed to fail.  And I will argue 
> that's a
> good thing too!
> 
> 
> 
> First, not every thoughtful and well-informed observer of 
> constitutionallitigation, American courts, or comparative law 
> shares the conclusion that
> increased reliance on foreign court decisions in this particular 
> area of
> judicial activity is a healthy development.  Thus, this is not a 
> questionupon which the well-educated elites have reached one 
> consensus by virtue of
> superior education, which the unwashed masses surely will 
recognize 
> as the
> right answer if only they could be reached with articulate and
> appropriately-adapted (and respectful) argumentation.  One 
may 
> appreciatethe value or even necessity of foreign and 
international 
> judicial authority
> in certain fields of adjudication (such as treaty interpretation), 
> as well
> as the wealth of comparative and transnational law resources 
for a 
> host of
> policy questions before a legislative body, while simultaneously 
> regardingreference to foreign judicial decisions as the 
> introduction of a mischievous
> element when interpreting the Constitution of the United States.
> 
> 
> 
> I am one of those who regards the increased citation to foreign 
> opinions in
> constitutional decisions by the Supreme Court with alarm, for 
> reasons quite
> aside from any zenophobia or an unbounded belief in 
American 
> exceptionalism.Nor would I deny that wisdom may be found 
outside of 
> the borders of the
> United States (as my own writing on treaty-interpretation 
attests). 
> Rather,
> I remain skeptical that a foundational text formulated and 
evolving 
> in a
> distinctly American historical setting (the United States 
> Constitution) can
> be elucidated by reference to foreign decisions, or at least be 
> done in a
> manner not carrying by much greater costs than benefits.
> 
> 
> 
> Certainly, I have no doubt that certain discrete points of 
analysis 
> that may
> be found in a foreign judicial opinion might translate well into a 
> similaranalysis of an American constitutional problem, in the 
same 
> way that, for
> example, one might benefit in study of torts by cross-
fertilization 
> with the
> law of contracts or for that matter by exploring consumer 
> economics.  For a
> judge to read widely, including foreign judicial opinions, and to
> occasionally make use of that wisdom sotto voce would draw 
no 
> objection for
> me.  But to cite to such foreign decisions inevitably leaves the 
> impressionthat they have some authoritative weight,
> 
> 
> 
> Moreover, any judicial opinion must be understood in the 
context of 
> itslegal system, taking into account the nature of the 
constitution 
> in that
> country, considering the text of that provision, being aware of 
the
> possibility of misunderstandings resulting from translation of 
> foreign legal
> texts to American English, appreciating the historical role of the
> constitutional courts in that nation, fully understanding the 
> reality of
> that nation in terms of its commitment to democracy and 
human 
> rights, etc.
> Yet that context is essential for a citation to a foreign decision 
> to be
> given appropriate weight or to have any persuasive value.  
Our 
> judges have a
> big enough job to fully understand the legal system in which 
they 
> operate,without placing upon them the duty to examine fully the 
> comparative legal
> system of a foreign court.
> 
> 
> 
> In addition, as an empirical scholar, I am troubled by the rather 
> sloppy and
> non-empirical manner in which foreign constitutional decisions 
tend 
> to be
> cited, usually (but not always) with little or no attempt to 
determine
> whether that decision falls within the mainstream of nations or 
> even the
> mainstream of comparable nations (however one chooses to 
define
> comparability).  If a South African decision on same-sex 
marriage 
> is to be
> cited as having some interpretive value for the United States 
> Constitution,then why not cite the a Saudi Arabian court on 
gender 
> equity, a German court
> on freedom of speech, a Chinese court on capital punishment, 
or a 
> easternEuropean court on religious symbols in public settings.  
To 
> adapt the old
> joke about legislative history, citation of one foreign court 
> opinion rather
> than another by a judge tends to be like going to a cocktail 
party, 
> lookingout over the crowd, and picking out your friends.  In 
most 
> instances, the
> reason why one decision is cited, while counter-examples are 
> ignored, is not
> because of careful comparative law analysis but rather 
because of 
> affinityfor an underlying value or result in the foreign decision, 
> which brings me
> to my second point.
> 
> 
> 
> Second, while the American people may not live and move and 
have 
> their being
> in an atmosphere of academic theory and conceptualization, 
they 
> have shown
> themselves over time, and not always evenly, to be a people 
of sound
> common-sense.  Two centuries of success, economically and 
> empirically, in
> one of the most heterogenous societies on the planet, speaks 
to that
> pragmatism.  Thus, they soon will discern that most of the 
legal and
> academic voices contending for greater attention to 
constitutional 
> decisonsby other nations are motivated in substantial part by 
their 
> attraction to
> the values underlying those foreign decisions that they choose 
to 
> cite.  Too
> often this is not really a debate about international sensitivity 
and
> sensible comparative law, as contrasted with American hubris, 
but 
> ratherabout underlying ideological preferences.  To be sure, 
many 
> might argue that
> this is nothing new, since ideological attitude is viewed as a 
primary
> determinant of judicial decisions anyway.  That's another 
debate.  But
> surely we can agree that hiding ideological preferences behind 
yet 
> anotherlegal veil - now the supposed persuasive value of 
foreign 
> judicialauthorities - is not healthy.
> 
> 
> 
> Third, and related to the second point, a position on in the
> foreign-court-citation debate often appears to be a proxy for 
one's 
> attitudetoward the role of courts in a constitutional democracy.  
> Seldom have we
> seen the advocates of reliance on foreign law, either on the 
> Supreme Court
> or in the academy, cite to such decisions for the purpose of 
> encouragingjudicial restraint, that is, withholding judicial 
> disposition of
> controversial questions in favor of democratic deliberation.  
> Rather foreign
> court decisions are cited as yet another reason for judicial 
> interventioninto controversial social questions.  Thus, the 
> implicit argument goes, if
> another country's judiciary has so impressed its values on the 
> citizenry,then why shouldn't the American judiciary do the 
same.
> 
> 
> 
> I remain unconvinced that judges possess sufficient 
knowledge and 
> virtue to
> undertake a mission of moral evaluation through the episodic 
venues 
> of cases
> and controversies.  In my view, citation to a foreign judicial 
> opinion to
> support a judicial decree that sets aside the judgments of the 
> Americanpeople through democratic processes is not an 
advance in 
> judicial legitimacy
> or the rule of law.  The role of the judiciary in constitutional 
> review is
> to determine the substantive principles incorporate in the 
United 
> StatesConstitution for application to concrete individual 
> controversies, while
> avoiding to the extent realistically possible an evaluation of the 
> wisdom or
> desirability of the government policies at issue.  Pluralist views 
> of right
> and wrong are best addressed and accommodated in a 
democratic 
> politicaldebate, with the judiciary serving the vital but 
secondary 
> role of ensuring
> that basic rights are protected to prevent oppression of 
minorities by
> majoritarian rule.  The absence of a constitutional right, and 
thus a
> judicial remedy, does not dictate a narrow or limited vision of a 
> moralsociety.  Rather, it means that recourse must be made to 
the 
> politicalprocess - or beyond to the moral-cultural realm of our 
> community, which
> brings me to my last point.
> 
> 
> 
> Fourth, transforming American constitutional law into 
comparative 
> law would
> be even more elitist and foreign (pun intended) to the average 
> person than
> is the current state of constitutional litigation.  The forum of the
> courtroom and the language of the law is alien and alienating to 
> the average
> person.  But by moving moral dialogue into the courthouse, we 
close 
> the door
> on those who do not have access to the legal process and, in 
a 
> practicalsense, to those who do not possess a degree in law.  
> Constitutionallitigation by its nature is exclusionary.  The 
> average American has not been
> inducted into what Robert Nagel calls the "intellectual culture of 
> lawyersand judges."  Robert F. Nagel, Constitutional Cultures:  
The 
> Mentality and
> Consequences of Judicial Review 15 (1989).  Most Americans 
are 
> unfamiliarwith the Constitution, other than as a vague object of 
> reverence.  Thus, to
> participate effectively in a constitutive dialogue carried on in 
> the venue
> of the courts, one must be a member of the priestly class of 
our civil
> religion, that is, a lawyer or a person with a strong measure of 
> formal or
> informal legal education.  And a moral conversation conducted 
through
> Supreme Court opinions excludes even the majority of 
lawyers.  The 
> dialogueof constitutional litigation is thus twice removed from 
the 
> ordinarydiscourse of the people.  As Frederick Schauer 
suggests, 
> "just as legal
> language is different in kind from ordinary language, 
constitutional
> language may be different in kind from other legal language."  
> FrederickSchauer, An Essay on Constitutional Language, 29 
UCLA L. 
> Rev. 797, 800
> (1982).  Our present tendency to transport controversial 
questions 
> aboutpolicy and culture into constitutional litigation before the 
> Supreme Court
> disempowers the people from full participation in their 
government.
> 
> 
> 
> To now add yet another layer of legalism or sophistication into
> constitutional interpretation - the meaning and comparative 
analogy of
> foreign court decisions - and then to say that expertise in 
> comparativeconstitutional law is a prerequisite to full 
engagement 
> in constitutional
> dissertation further estranges the public from these important 
> discussion.By this device, added to the rest of the 
constitutional 
> law appartus, the
> average citizen is left further and further removed from the 
elite
> cognescenti on the bench and in the academy who presume 
to tell the 
> publicwhat they should think about constitutional governance 
and 
> what they should
> believe about constitutional values (and, perhaps, about basic 
> moral values
> as well).
> 
> 
> 
> In sum, I think the public will see through this, recognize that 
> the foreign
> citation debate essentially is a debate about values, not about 
> educationalprowess or sensitive appreciation for a global 
community.
> 
> 
> 
> Well, now I've done it, and upset the apple-cart.  I admit I've 
been
> intentionally provocative in expressing the contrary viewpoint 
above,
> although my views are genuine as well.  Still, I do enjoy the 
> discussion and
> undoubtedly will learn further from the continuing conversation 
and
> expressions of opposing views.
> 
> 
> 
> Greg Sisk
> 
> 
> 
> 
> 
> Gregory Sisk
> 
> Professor of Law
> 
> University of St. Thomas School of Law (Minneapolis)
> 
> MSL 400, 1000 LaSalle Avenue
> 
> Minneapolis, MN  55403-2005
> 
> 651-962-4923
> 
> gcsisk at stthomas.edu
> 
> http://personal2.stthomas.edu/GCSISK/sisk.html
> <" target="l">http://personal2.stthomas.edu/GCSISK/sisk.html> 
> 
> 
> 
> 
> 
> 
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