Supreme Court Justices Stephen Breyer and Antonin Scalia sat down last Thursday at the Washington College of Law for a rare public conversation about the legality of using foreign laws to interpret the U.S. Constitution.
Norman Dorsen, founder and president of the U.S. Association of Constitutional Law, moderated the conference.
"It is important to realize that the Supreme Court has relied on foreign materials in the past such as the Magna Carta in the 1800s," Dorsen said.
There is now a new attentiveness by the Supreme Court to other courts in the world, a trend that some judges do not like, according to Dorsen. "And it's not just the conservatives," he said.
The justices, both graduates of Harvard Law School and former law school professors, took opposing viewpoints on the issue. Although different presidents appointed the judges, in only four of the last 19 cases have they disagreed.
Scalia, appointed by President Ronald Reagan in 1986 and believed by some to be successor to Chief Justice William Rehnquist, said that he does not use foreign law in the interpretation of the constitution.
"We don't have the same moral framework in our constitution as the rest of the world," he said. "The framers would be appalled."
Breyer, appointed by President Bill Clinton in 1994, said that he was taken by surprise by the controversy. Though he believes it is acceptable to use foreign precedent in opinions for the U.S. Constitution, he said that he deems the issue as somewhat "unimportant."
"We should read what justices say in other countries are dealing with the same issue," Breyer said. He cited a recent example of the question as to whether keeping a convicted felon on death row for 20 years should be considered cruel and unusual punishment.
"On this type of issue it is a human rights issue and Americans are human," Breyer said. On this particular opinion he cited a United Nations opinion as a source.
Though the justices disagreed fundamentally on the issue, the debate was friendly and the justices often got laughs from the audience. Sitting in large living-room chairs, the mood was somewhat casual despite the seriousness of the subject of discussion. There were no heated points in the debate as they talked like old friends and seemed to have a mutual respect for the other's work.
Despite his objections to interpreting foreign law, Scalia said he was familiar with it. Aside from reading it when he deals with treaties involving other nations, he stated that he reads a lot of old English law, which is the origin of phrases such as "due process."
Scalia believes it as important to understand old English law since that is what, in part, the Constitution is based on. To better understand how to interpret the Constitution, he feels it is important to understand the documents that the framers used to create it. "In that case, I read more foreign materials than anyone else on the bench," he joked.
"The job of a Supreme Court justice is to interpret the Constitution," Scalia said. The only way it made sense to him to use foreign precedent is if the judge is concerned with "what is the best answer in my mind as a judge" and not for what is representative of American society.
In his defense, Breyer cited that when judges look to cases of foreign law, it should not be binding. He repeated the phrase: "I'm not bound by it."
He also stated that a judge should "never look to [foreign precedent] to support yourself. I read to learn what they think, one way or the other. It's not some major determinative thing. But from time to time it is relevant."
He agreed with Scalia that judges should not make decisions based on what they think is the right thing but what the people think is right.
"If you're going to do it [use foreign precedent] unfairly then find a different profession," Breyer said.
Another contention that Scalia had with using foreign law in writing opinions is that other cultures may have differences in law processes to our culture. For example, "they may not have habeas corpus clauses." In other cultures "executions took place within two weeks. The two situations are not comparable."
Breyer contended that he could be curious about how foreign courts dealt with cases. Scalia retorted, "I'm not stopping you from reading them, just don't put them in your opinions."
Breyer also noted that it is now "out of date" to teach law students foreign law. In its place he advocated teaching "comparative law because that's what we're seeing."
The last part of the conference was an open question and answer session.
One student asked why Scalia disagreed with this issue since one of the framers of the U.S. Constitution, Alexander Hamilton, said that we should look to foreign governments.
Scalia responded, "Hamilton was writing the constitution - not interpreting one"
