Court's use of foreign law
At the Volokh Conspiracy, Jim Lindgren has a post regarding Justice Ginsburg's references to foreign law, linking to an interesting study on use of foreign law by the Supremes. The gist of the study is that:
1. References to foreign law by the Court go far back into the early republic;
2. The references in constitutional cases have, however, recently escalated.
3. The practice may be justifiable when a constitutional provision refers to reasonableness or its like (cruel and unusual punishment springs to mind) but is hard to justify when construing an express American right or power that lacks such wording. That is, in the great majority of constitutional law cases.
4. In those cases, reference to international standards is suggestive that members of the Court are reaching out to justify illegitimate policy-making, making law and policy rather than construing it.
[Update: Haven't had time to read the study, so I don't know if it counts British common law decisions. The summary refers to an 1820 decision on the definition of piracy. I can readily see use of foreign law in that context, since piracy is an international crime defined largely by international tradition -- that is, a sort of international common law.]
The word foreign may be a distortion. I'll bet that most of the early "foreign" law was English law. Even many of the early state Second Amendment cases i.e. Bliss v. Commonwealth, cite English law. It would be intersting to know how much is not based upon English law.
Posted by: Rudy DiGiacinto at March 19, 2006 06:27 PM
If you really want to get your hackles up over not just the use of foreign law, read the decision in Roper v. Simmons, decided last term. The use of foreign law to justify deconstructing the clear intent of the founders is scary; read Scalia's dissent too. It's about as scathing a piece you'll ever read.
Posted by: me at March 20, 2006 10:11 AM