Rosenkranz on "An American Amendment"; or, Do 9 and 11 Equal 28?

Nicholas Quinn Rosenkranz has posted on SSRN a short paper called An American Amendment.  It argues, in an admirably succinct fashion, for a constitutional amendment banning the reliance on foreign law in interpreting the Constitution.  The proposed amendment reads, in its entirety: "This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the contemporary laws of other nations."

It's a fun paper, and the kind that will draw scads of downloads.  Our guest blogger Austen, having written about these issues, might want to weigh in.  But let me say that although I enjoyed it, I think it's seriously flawed.  Of course, there is even less chance of such an amendment getting off the ground in 2009 than there was when his paper was orally delivered in 2007, so nothing much turns on it.  But it still compels this response.

I have, I think, three major problems with the article.  

The first is its somewhat bizarre tone.  For whom is this paper intended?  Its central premise is that reliance on foreign law is illegitimate because "the project of constitutional interpretation, properly understood," is only concerned with the original expected public meaning of the text at the time of ratification, and so foreign law is simply irrelevant.  For those who agree with this interpretive approach, it says nothing they would not already agree with.  For those who don't think constitutional meaning can be so cabined, it offers nothing to change their minds; understandably, perhaps, in a paper this short, it simply proceeds by way of ipse dixits about how to interpret the Constitution.  So what does it achieve?  It makes me think of Judge Posner's recent critical remarks, in his new piece in the Georgetown Law Journal, observing that much constitutional scholarship is just by and for other constitutional scholars.  This paper is even more circumscribed: it's written by and for, and by way of reassuring, constitutional scholars who already accept particular contestable interpretive premises.  

Second, and giving rise to my subtitle, Rosenkranz argues that his proposed 28th Amendment would "fit nicely within our constitutional tradition," given the presence of the Ninth and Eleventh Amendments.  But the first has had little meaningful effect on the courts, and the second has been read in ways that are hardly reflective of the text.  As simple as his proposed text is, what reason is there to think it would not give rise to the same interpretive ambiguities that afflict other amendments?  For instance, what would "construed" mean in this context, and why would it forbid citation of foreign law by way of illustration or comparison?  Of course, given my own priors, I think of this (constrained) interpretive freedom as endemic to, and not incidental to, the task of constitutional interpretation.  Rosenkranz apparently thinks otherwise; but surely he is aware that even meta-rules cannot perfectly cabin the scope of their own interpretation, as the Eleventh Amendment itself demonstrates so well. 

Third, given Rosenkranz's premise, the scope of the amendment is woefully incomplete.  Rosenkranz argues that allowing the Court to cite foreign law declares "nothing less than the power of foreign governments to change the meaning of the United States Constitution."  He adds in a footnote: "If the Court cites foreign sources, presumably it is relying upon them at least in part.  The Court has no business spending government money to print its thoughts in the United States Reports unless those thoughts are in the service of an exercise of the judicial power."  If that is so, then surely we should amend his amendment to ban the citation of any non-authoritative sources: Rosenkranz's own article, say, along with all other law review articles and, indeed, opinions of lower courts.  We could add to that still other non-authoritative "thoughts," like Justice Scalia's occasional rhapsodies on such matters as the nobility of military academies and the actions of the President at post-9/11 memorial services, all of which are irrelevant to and detract mightily from the persuasiveness of his own interpretive method.  He would certainly save us in printing costs, but only at the expense of a good deal of candor about the actual sources of judicial opinion.

I have other quibbles with the piece.  He says -- another ipse dixit -- that the "current predilection for use of current foreign law is as a mechanism of constitutional change."  Yes, if you accept his premises; no, if you think of it as a mechanism, one among many, of constitutional interpretation or implementation of a document whose aged and ambiguous interpretive status both permits and allows some recognition of contemporary social facts.  And he says the citation of foreign law differs from constitutional amendment because the latter requires the concurrence of individuals with "a different -- and exclusively American -- geographic perspective."  The two may differ in legitimacy, but surely not in the sources they draw on; of course citizens may be influenced during the amendment process by arguments drawn from a variety of foreign sources, as, indeed, the Framers were.  Finally, he writes that the amendment is not far-fetched because the citation of foreign law has drawn great political and theoretical attention, and "could conceivably inspire a sufficiently broad and deep consensus for constitutional change."  I don't think so.  The public is not that interested in the issue, and even most of those who express concern about it really like the issue for what they think it signals about political and constitutional ideology.  We might get broad consensus on this issue, but it would be decidedly shallow.  Remember, along these lines, the 27th Amendment.

A fun piece, as I say.  But I don't find it persuasive, and I'm a little bewildered by how persuasive it doesn't seek to be.  As with some but not all constitutional scholarship, it strikes me as preaching to the converted.