What in the World is Jeff Sessions Talking About?

One of the most common attacks conservatives have made against progressive judges over the past five years is the claim that citing to decisions of courts of other countries constitutes a sure sign of liberal judicial activism. Fed by questions from Republican Senators, Chief Justice Roberts and Justice Alito both forcefully denounced this practice at their nomination hearings (despite their assertion that they could not take a position about just about every other legal issue), with Roberts colorfully asserting that this was akin to "looking out into a crowd and picking out your friends." Just this morning, Republican Senator Jeff Sessions, recently chosen to be the ranking Republican on the Senate Judiciary Committee, repeated this claim on Morning Joe, attacking the Court's "four or sometimes five liberals" for citing foreign cases and implying that he would vote against any nominee who had the temerity to suggest this was appropriate.

Repetition does not make these claims any less absurd. No judge we are aware of has asserted that the rulings of foreign courts should dictate how American judges interpret the U.S. Constitution, or be considered precedent that must be followed. The issue is whether American judges trying to resolve a dispute may look for guidance in how judges in other countries with similar legal systems have resolved similar disputes.

On that question, let's start with first principles. Much of our Constitution is breathtakingly novel, but not all of it. Some terms -- "the privilege of the writ of habeas corpus," "bill of attainder" -- were borrowed from English law, and no one has ever seriously questioned the propriety of citing the precedent of English courts in determining the meaning of these constitutional terms. Nor, certainly, were our framers averse to looking for guidance from the tribunals of other nations. On the contrary, in Federalist 63, James Madison and Alexander Hamilton urged "attention to the judgment of other nations," explaining that "in doubtful cases, particularly where the national councils may be warped by strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed."

It is also utterly uncontroversial for the Supreme Court to cite to foreign precedent when interpreting a treaty, something the Justices must do under the Supremacy Clause, which makes treaties part of the "supreme Law of the Land." Even Justice Scalia -- the Court's harshest critic of the practice of looking to foreign decisions in constitutional cases -- accepts that the Supreme Court must look to the decisions of foreign courts when interpreting treaties that the United States has signed. Indeed, in the 2004 case of Olympic Airways v. Husain, Scalia went so far as to dissent from the Court's interpretation of a treaty because the majority did not give sufficient consideration to the views of courts in England and Australia, which had rejected the Court's construction of the treaty.

So what precisely is Senator Session's problem? The main answer, it seems, is that he and other conservatives don't like the way the Supreme Court has interpreted the Eighth Amendment's bar against "cruel and unusual punishments" to reflect "evolving standards of decency." Justice Scalia and other conservatives have argued, based on a dubious reading of the Eighth Amendment's text, that judges should look only at whether a punishment was considered cruel and unusual in 1789. Scalia thus wants judges to look only at old English precedents, not modern rulings from around the country and around the world. That's a plausible, if ultimately unpersuasive, position on the Eighth Amendment, but it hardly supports a total ban on citing the work of foreign courts in cases dealing with American constitutional law. And the Court's majority can hardly be criticized as "activist" for following the long-standing Eighth Amendment jurisprudence, which compels an inquiry into evolving standards of decency.

If American judges are required to consult foreign law when it comes to treaties, as well as old English cases about English equivalents to rights in our Constitution, it is hard to understand why American judges may never consider other foreign rulings when it comes to the Constitution, even when both the problem and the relevant legal standards are similar in the United States and the relevant foreign nation.
As Justice Ginsburg recently put it, "Why shouldn't we look to the wisdom of the judge from abroad with at least as much ease as we would review a law review article written by a professor?" Conservatives should be forced to answer that unanswerable query every time they assert that it is improper for a judge to cite the ruling of a court of another country.

This post was written by Doug Kendall and David Gans. Doug Kendall is the President of Constitutional Accountability Center (CAC), a law firm, think tank and action center based in Washington DC, David Gans is CAC's Human and Civil Rights Director. For more on the progressive promise of the Constitution's text and history visit CAC's website or blog.

Comments

[babyboomerorig]

Everybody but those in the South cheered when the Civil Rights Act was passed and in the past 8 years there have been a lot of southerners wanting that reversed.

What is it that you people have against others in the human race?

[rywhite83]

"no one has ever seriously questioned the propriety of citing the precedent of English courts in determining the meaning of these constitutional terms."

In part, that is because English decisions from prior to July 4, 1776 are binding precedent in every American court, aside from the Civil Law courts of Lousiana.

[rixter1965]

Aren't these the same folks who make statements such as "Marriage has been defined as that between a man and a woman for 5,000 years?" Since the US is something short of that age (although the Earth apparently is not), would not malaws regarding restricting marriage to heterosexual couples in fact be based on "foreign laws?" Are these not the same folks who like to talk about Western values (citing the Magna Carta, for example)? Another "foreign document" and basis for law!

[Amalek]

Outstanding reasoning. Why do conservatives insist on following those middle eastern laws called the ten commandments?

[Americain]

But it undermines Jeff Session's right to hate France!

[NotWaldo]

Jeff Sessions : "Justice should be blind AND xenophobian, just like ME "

[LeftRight]

So if we are only going to determine the eighth amendment on the basis of what England was doing in 1789, doesn't that mean that we must interpret the first amendment's right to free speech based on the technology of 1789, and the second amendment's right to bearing arms based on the level of technology in 1789....

[TLV]

At the base of American political conservatism is the ridiculous notion that American minds and the laws we come up with are somehow superior to those of human beings in other nations.

[Peter Nuhn]

Kendall Only went so far and didn't actually answer the question. What Senator Sessions is talking about is the fact that a comment was made in the decision that Texas and the rest of the US like right here in Virginia have to stop killing their children.

The fact was that we in the US were in the same international community as N. Korea, and Iran with regards to laws that authorized treating children as adults and the courts being able to inflict the death penalty. And when those two countries found out they were in the same company as us, they took steps to stop out of embarrassment of being as barbarian as the US. The decision went on to point out that the overwhelming majority of states and countries all outlaw treating children as adults for the purpose of leveling the ultimate punishment.

Sessions is arguing that our future judges should only be granted consent by the Senate to sit on our courts if they are comfortable with killing little children.

[Cratchit]

We had a bloody revolution in order to reject all things of the "old world", including it's weird and unfair systems of law. We as Americans need to reject out of hand any foreign legaL opinions about anything. If, and only it, we can not come up with uniquely American precedents in law, we need to use the Constitution as the only arbiter in decision making.

We fought a revolution to be different goddammit, not to similar to other countries!

[islandchris]

Your grasp of history is as shaky as your grasp of Law.

Take a look at the first revolutionary flag raised by George Washington and notice the Union jack in the corner

http://en.wikipedia.org/wiki/Grand_Union_Flag

The motives for independence were complex, and changed over the years of conflict, but many of the founding fathers understood that their principal concepts of rights and liberties originated in British precedent or writings. Throughout the last two centuries, there has been steady flow of reformist ideas going in both directions between America and other countries. All of the worlds democracies (assuming you accept that there are other democracies than the US) are separate social experiments from which we can potentially learn something of value to the American experience.

[TLV]

WE did not fight a revolution. Men of many, many years ago did. Rejecting out of hand foreign legal opinions is to reject the notion that even those who sought justice for the victims of the Nazi atrocities was an unacceptable plan to the American mind. Thank God we did decide to help those who held the Nuremberg trials to meld our legal opinions with theirs. By the way, two American lawyers who participated in those trials - Ben Ferencz and Henry King - has said that the Bush administration broke numerous international laws while in office.

The crazy idea that we are an island apart from the rest of the world seems to have become lodged in the crevices of your brain. We are part of the society of human beings which populate The Planet Earth. Accept it.

[rywhite83]

The reason they are cited to is because other countries have become similar to us. Canada, South Africa, New Zealand and Australia all have constitutions and routinely (or at least used to) routinely cite to American Supreme Court decisions. Our failure to cite to foreign law contributes to the declining significance of American Constitutional law in the rest of the world.

[henrywolff]

I find Somalian case law quite instructive on some of the more arcane areas of tort law.

[Cratchit]

Did you mean torture law instead of tort law?

[henrywolff]

Touche

[chitom]

Thanks for clarifying the background of this weird little meme.

By the way, what was the standard type of English assault rifle in 1789? I want to get one and defend my right to bear (18th century) arms.

[ThomasMc]

Lying. It's the Republican way.

[caphillprof]

American conservatives are fighting against the entire world.