Question [long response]

[Mark Tushnet]

I'm coming late to this, having just returned home from a meeting 
at which this reference came up.  I took it to be an implicit 
reference to the proposed Constitution Restoration Act, of which 
(I think) Senator Coburn is a cosponsor.  One provision says 
that no federal judge shall "rely upon" non-U.S. law in interpreting 
the Constitution [except that references to British common law 
before 1789 are OK -- which gets Justice Scalia off the hook for 
most of his references; the theory of the exception should be 
obvious]; another says that violation of the foregoing shall be an 
impeachable offense and a breach of the standard of good 
behavior.

My take on this is as follows [and this time, with yet another 
apology -- I'm doing a short piece on the Constitution 
Restoration Act at a symposium at Case-Western Reserve in a 
couple of weeks]:  (a)  The proposed Act has essentially no 
chance of being enacted.  (b)  The Ford standard -- "whatever 
the House wants" -- is not an accurate statement of the 
[congressional] law of impeachment.  I don't think it's been 
mentioned in any post-Douglas impeachment inquiries, in all of 
which there has been serious discussion about identifying and 
applying an appropriate standard.  (c)  The failed Chase 
impeachment established that impeachment was not proper 
merely for disagreement with a judge's decisions.  (d)  But, 
impeachment is available for [some? or all?] violations of the law.  
(e)  So, under the evolving law of impeachment, were the Act to 
be adopted and were a judge to "rely upon" non-U.S. law [which 
in my view has not yet been the case], that violation might well 
be a permissible predicate for impeachment.  (FWIW, I agree 
with the conclusion of the argument I've just made, though not 
with the proposition that it would be valuable to enact the 
proposed statute.)

Some might think it a violation of Article III for Congress to 
proscribe a particular technique of judicial decision-making (an 
issue pending before the Ninth Circuit in connection with 
AEDPA).  I don't [consider a statute banning the use of Latin 
words other than those that appear in the current Black's Law 
Dictionary], but in any event it seems to me clear that the 
implication of the Walter Nixon case is that that claim of 
unconstitutionality would not be justiciable in a case involving an 
impeachment.

Again, apologies for the length of this.

----- Original Message -----
From: Douglas Edlin <edlind at dickinson.edu>
Date: Thursday, January 12, 2006 9:58 am
Subject: Question

> Sen. Tom Coburn questioned Judge Alito yesterday about the 
citation 
> of 
> foreign legal sources in the interpretation of the United States 
> Constitution.  Judge Alito agreed with Dr. Coburn that it is 
> improper 
> for Supreme Court justices to reference foreign legal materials 
> when 
> interpreting the Constitution, but I don't want to pursue that 
> issue at 
> the moment.  In the course of his questioning, Dr. Coburn 
mentioned 
> more 
> than once that he believes it violates the "good behavior" 
> provision of 
> Art. III, Sec. 1 for justices to cite foreign legal materials when 
> interpreting the Constitution.  This seems a veiled (or not so 
> veiled) 
> threat of potential impeachment proceedings against justices 
who 
> might 
> cite these materials in the future.  What do people make of 
this? 
> Regardless of one's view of the propriety of citing foreign 
> materials, 
> do others on the list believe that it would be proper to impeach 
a 
> judge 
> for citing these materials?
> 
> Thanks,
> 
> Doug
> 
> -- 
> Douglas E. Edlin
> Assistant Professor
> Department of Political Science
> Dickinson College
> P.O. Box 1773
> Carlisle, Pennsylvania 17013
> 717.245.1388
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