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Tuesday, March 24, 2009

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.

Posted by Paul Horwitz on March 24, 2009 at 06:16 PM in Constitutional thoughts | Permalink


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Since Paul invited my comment, I thought I would weigh in as he suggets. My view is similar to Paul's. Although I like Nick Rosenkranz's work, this short paper doesn't do much to help convince the non-originalist. I see two other issues though, which are problematic for the piece.

First, the paper overstates the concern. One may be opposed to using foreign law, but "foreign government control over the meaning of our constitution" is not at stake. Nor is looking at foreign law as persuasive authority declaring "the power of foreign governments the power to change the meaning of the U.S. Constitution." For one, cases are written by American judges, nominated and confirmed (or maybe elected in the state system) under the U.S. system. The U.S. does not cede control to foreign elements when a U.S. judge autonomously decides to align itself with the rulings of a foreign nation. The decision to align may, or may not, be a bad decision in any particular case, but it's not a question of losing control.

Second, I'm aware of no case that uses foreign law -- in the manner Nick is concerned about -- as anything more than persuasive authority (even that may be overstating it as its often cited as an aside). That may be poor judging, or unnecessary window-dressing, or masks results-oriented decisions (the criticisms often lodged against the use of foreign law), but it's speculation to suggest that the foreign law controlled the outcome in any case. That may be a fear for future cases, but there's nothing to suggest in past decisions that foreign law was ever looked to as being dispositive.

Paul's point about other non-authoritative sources I think is a good one. But there's another point to be made here too. State courts -- throughout the U.S. -- cite to other state courts when making constitutional decisions as persuasive, non-authoritive support. It's a significant part of state constitutional law practice. The practice is routine and has been going on since the founding. But surely what California says about its state constitution is irrelevant to New York deciding what its constutition means, or what any other states' constitutions mean. If we prohibit all non-authoritative sources, in the way suggested, then it should also be equally offensive within our federal system. It's not sufficient to say that U.S. states share a much closer culture and history than the U.S. to foreign states. While true, that difference is one of degree, not kind, under an originalist view.

I'm sure the point of the article is to be provocative in proposing the amendment. And it is a fast read. But I overall I agree with Paul's critique.

Posted by: AP | Mar 24, 2009 10:01:47 PM

Hi Paul and Austen. Here's a small point/question about the intersection of originalism and foreign law: I seem to remember that many jurisdictions incorporated English common law principles wholesale at the beginning of the republic. This was obviously a move made from necessity since there was no preexisting body of American law to rely on. This was, I think, largely state law but aren't there many other instances where we look to English common law as a source of interpretation in federal common or constitutional law? For example, contemporary understandings of the crown's immunity from suit or tort law are often invoked in judicial opinions about the 11th Amendment or the scope of the FTCA. I realize this doesn't raise precisely the same concerns that seem to animate Rosenkranz or others who are critical of adverting to foreign sources of law, but it seems to suggest that adverting to those sources is something that the framers did and that federal courts have done for some time (not just a recent trend). And it also makes the scope of the proposed constitutional amendment problematically overbroad insofar as it could preclude federal courts from considering the role of 18th century English law (or lex mercatoria, I suppose) that undoubtedly contributes to understanding our own laws.

Posted by: Dave | Mar 25, 2009 12:32:59 AM

Thanks, Austen and Dave. Dave, on your point, I will gladly give Rosenkranz his due and say that I would agree that the situation you posit generally falls further afield from his example; I assume he would permit the citation of English law predating the Constitution to the extent that it provides evidence of original public understanding, although he would presumably reject the Frankfurterian effort to draw on post-ratification English law. That doesn't answer your point about the citation of current foreign understandings about the crown's immunity, and I assume his amendment would bar that to the extent that it went to constitutional as opposed to statutory interpretation, but it would allow 18th century English law to be cited. I agree with Austen, incidentally, that foreign law as received through American judicial eyes is not "foreign" to that extent, although Rosenkranz presumably dislikes it because he dislikes any judicial interpretations that are not focused on original understanding; I agree with him also that many such citations are not citations to authority, although his article is limited to Roper and Lawrence; and I agree that state court citations should be just as illegitimate under Rosenkranz's theory.

Posted by: Paul Horwitz | Mar 25, 2009 1:09:38 AM

Paul: the first question your post raised touched the heart of the matter -- fore whom was this article intended? Actually, Rosenkranz discloses up front (in his bio fn) that "This Essay is derived from remarks delivered at the 2007 Federalist Society National Lawyers Convention." It's less an article (he cites some articles it is drawn from) than a sermon being preached to the choir. It will convert no one (least of all me), but that was pretty clearly not the point.

Posted by: Mark Herlihy | Mar 31, 2009 6:03:50 PM

I even question if "originalists" would be convinced, since some people have tried (with some success, imho) to argue that the framers etc. DO find foreign law in some respect relevant.

Posted by: Joe | Apr 6, 2009 8:42:35 AM

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