Foreign Law in U.S. Constitutional Interpretation
A litigant challenges a state statute as unconstitutional under the Due Process Clause. The Supreme Court rejects this claim in spite of powerful evidence that the statute is inconsistent with the original understanding of the Constitution. In part, they rest this conclusion on European law, which sanctions the state practice at issue and “informs” the meaning of due process. According to the Court:
“The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not useful forms.”
So who wrote this internationalist claptrap? Justice Kennedy? Justice Breyer? Harold Koh?
Actually, it was Hurtado v. California, the 1884 decision holding that grand jury indictment was not part of the due process guarantied by the Fourteenth Amendment and that proceeding by information, which was a civil law practice, was consistent with the Due Process Clause.
Now does this (or other similar cases that I could cite from that time) settle the question of how foreign law should be used in constitutional interpretation? Of course not. My point is that the argument that this technique is new and at odds with our constitutional tradition is simply inaccurate.