Tribe on the Use of Foreign Law

In an earlier post, I outlined the basic themes of Laurence Tribe’s The Invisible Constitution.  One specific section that was of particular interest to me was Tribe’s defense of the use of foreign law in constitutional interpretation.  I run into this controversial practice every spring when I teach Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 51 (2005).  Interpreting the Cruel and Unusual Punishment Clause of the Eighth Amendment, Atkins banned execution of the mentally retarded, while Roper outlawed the death penalty for juvenile defendants.  In both cases, the majority drew intense criticism for citing foreign law in support of its holding.

Based on Atkins and Roper anyway — I am admittedly not as familiar with some of the Court’s other uses of foreign law — I think that Tribe is right about at least two things.

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Restrained Judicial Activism

In contemporary legal discussion, “judicial activism” is roundly condemned.  This behavior refers generally to any instance in which a court’s opinion is the product of the court following its personal policy preferences instead of the commands of the law.

The favored behavior is “judicial restraint,” which is usually defined by the values of “originalism” (deference to the original intent of the lawgivers), “textualism” (respect for the language of laws), “self-restraint” (respect for precedent) , and “separation of powers” (deference to the prerogatives of democratically elected legislative bodies and/or the States).

The foundations of “judicial restraint” are originalism and textualism.  “Self-restraint” and “separation of powers” are secondary values. Precedent and legislative enactments are binding and commendable only when they are consistent with the original intent and text of higher law, which is not always the case. 

The words of any law (statute or a decision) are the best evidence of its meaning because it is presumed that the law’s Framers picked those words to efficiently describe what they intended the law to require or prohibit.  (For the sake of convenience I use “Framers” to refer to courts rendering a decision or legislative bodies drafting a statute.)  “Textualism” demands respect for the clear meaning of these words.  Unless there is some unavoidable flaw or ambiguity in the drafting which makes the intent of the Framers incomplete, incoherent, or ambiguous, courts should treat laws as meaning what they say they mean.

Textualism has its limitations. 

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More Thoughts on Marriage

Sean Samis has posted a lengthy response to my post expressing “different” thoughts on the Iowa decision on same-sex marriage. I thank him for his response and, while I think he has got it wrong, he’d get a great grade for his efforts in my Law & Theology seminar or Wisconsin Supreme Court class and so he deserves a response. Given the length of the remarks that I am about to make, I once again thought it better to post separately.

I have come to believe that the underlying presumptions of proponents and opponents of same-sex marriage are almost ontological in their differences about the nature of the law and the way in which it shapes and is shaped by society. We are all hard-wired now days to think of constitutional law as, largely, the mediation between the “rights” of individuals and the “demands” of the state. The former are seen as radically subjective, while the latter are the sum of their legal incidents. The former are not to be judged, and the latter are often examined for their “fit” without regard for their interaction with extralegal norms and institutions.

We also are steeped in an almost eschatological view of the law in which we see the claims of some new “discrete and insular minority” as analogous to those advanced during the civil rights movement and somehow validated by an Hegelian move toward “equality” and progressivism.

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