SCOTUS: Citing Foreign Court Decisions

The United States Association of Constitutional Law has posted a transcript of the recent debate held at American University College of Law which hosted Justice Scalia and Justice Breyer. In the debate each of the Justices outlined their approach toward international law, specifically the relevance of of the decisions of foreign courts in our domestic legal system. Here are some insightful quotes from the event:

Scalia: "...I do not use foreign law in the interpretation of the United States Constitution. Now, I will use it in the interpretation of a treaty.

Scalia: "...you know, you talk about it's nice to know that we're on the right track, that we have a same moral and legal framework as the rest of the world. But we don't have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that what we're after is to, you know, do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it's full of, you know, statements that make very clear they didn't have a whole lot of respect for many of the rules in European countries."

Scalia: "Why is it that foreign law would be relevant to what an American judge does when he interprets -- interprets, not writes -- I mean, the Founders used a lot of foreign law. If you read the Federalist Papers, it's full of discussions of the Swiss system, German system. It's full of that. It is very useful in devising a constitution. But why is it useful in interpreting one?
Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don't think it changes since then. "

Breyer: "Well, it's relevant in the sense that you have a person who's a judge, who has similar training, who's trying to, let's say, apply a similar document, something like cruel and unusual or -- there are different words, but they come to roughly the same thing -- who has a society that's somewhat structured like ours."

Breyer: [talking about a specific case on which he sought out foreign legal decisions] "So here you're trying to get a picture how other people have dealt with it. And am I influenced by that? I am at least interested in reading it. And the fact that this has gone on all over the world and people have come to roughly similar conclusions, in my opinion, was the reason for thinking it at least is the kind of issue that maybe we ought to hear in our court, because I thought our people in this country are not that much different than people other places. "

Scalia: [Referring to the risks of citing foreign decisions] " I mean, it lends itself to manipulation. It lends itself. It invites manipulation. You know, I want to do this thing; I have to think of some reason for it. What reason -- you know, I want to come out this way. ...I have a decision by an intelligent man in Zimbabwe -- (laughter) -- or -- (laughs) -- or anywhere else and you put it in there and you give the citation. By God, it looks lawyerly! (Laughter.) And it lends itself to manipulation. It just does."

Breyer: "I've been reading about the Founding Fathers, and I think Franklin and Hamilton and Jefferson and Madison and maybe even George Washington all would have thought that we, on occasion at least, can learn something about our country and our law and our document from what happens elsewhere."

Breyer: "Do you think things outside the United States cannot be relevant to an understanding of how to apply the American Constitution? That's what's at issue. What is at issue is the extent to which you might learn from other places facts that would help you apply the Constitution of the United States. And in today's world, as I've said, where experiences are becoming more and more similar, I think that there is often -- not a lot, not always -- but in a finite number of instances there is something to learn about how to interpret this document..."