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Wednesday, April 13, 2005

Foreign Law and the Bible

Orin Kerr, at the VC, is comparing the Court's citing of foreign law in interpreting the US Constitution with the potential citing of biblical reasoning.  He's no doubt right that such an alternative source of inspiration would elicit outrage from many who are perfectly pleased to see the Court using foreign sources in its rendering of the Constitution.  It is a provocative comparison--and I welcome comments here about why the analogy does or doesn't work (since he hasn't allowed comments).

As a first pass, I think there is the obvious point that the Constitution itself purports to be immune from religious hermeneutics.  We can argue about what is a fair and properly historical account of the First Amendment's religious protections; but reasoning about the Constitution's meaning from within a particular religious tradition is probably precluded by the document itself.  It would do extreme violence to the Religion Clauses in the First Amendment.  I don't think the document is similarly textually immune from foreign law. 

I welcome more comments, since this is hardly enough to dispense with Orin's very interesting thought experiment.

Posted by Ethan Leib on April 13, 2005 at 05:06 PM in Legal Theory | Permalink


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Posted by: xango juice | May 20, 2005 2:31:40 PM

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Posted by: xango mangosteen | May 20, 2005 10:33:25 AM

I appreciate Kerr's thought experiment, and if I were more clever, I would take it further: citing the Bible to bolster the philosophical basis for a Constitutional right, and contrariwise, citing international consensus to support government action against such a right.

Kerr's point is that these things fit nicely into touchstones in the culture war, and I agree -- to the extent that they are exaggerated in the partisan media. The opposite cases, I imagine, would be ignored by culture warriors as useless for their purposes. But the cultural debate of the day shouldn't affect the legal validity of the opinions.

I feel sorry for Kennedy that he, a conservative, gets the brunt of right-wing criticism. (What was the latest -- comparing him to the KKK?) In difficult questions of rights, getting the moderate vote seems to require watering down the philosophical and historical argument. In Roper, his opinion came down to a pretty narrow bean-counting reversal, along with some empirical hedging, rather than the best case against juvenile execution. That's my feeling, anyway.

Posted by: Ezra | Apr 15, 2005 5:45:37 PM

Above, Davelawyer wrote:

"The use of the Bible would be an appropriate tool to test the evolving standards of decency in, say, 70 A.D., but not today."

This seems unquestionably wrong, at least in the United States. If we truly want the 8th amendment debate to turn on current beliefs about standards of decency, then the fact that the United States has a very large and increasing number of very religious christians should be a factor. If "our" includes a large part of the nation's population, the document that they cite as a moral guide surely tells us something about their beliefs about what is and what is not decent.

This seems to me to be a tempest in a teapot. Outside of the 8th amendment context (a special one), the main use of international law in domestic decisions is in providing alternative rules to unsolved problems. Courts turn to british and other common law countries to solve questions of how to interpret the common law of torts, contracts etc. all the time and do so without much incident. Outside of the 8th amendment context, international law decisions are used this way by the Supreme too (as they are, in a way, in Lawrence, where they were used for, among other thing, evidence that permitting sodomy hasn't had any of the bad effects Texas claimed it would have in other similar jurisdictions).

If international law decisions are merely used as examples of potential rules and/or evidence about the potential effects of rules, then there isn't much to worry about in the citation of the bible. Citing the bible wouldn't be wrong -- it would be ineffective. Outside of the 8th amendment context, it is unlikely that judges would cite to the bible as a rhetorical technique because it would be unlikely to convince anyone that a rule is good.

Posted by: Question | Apr 15, 2005 1:55:37 PM

Not only does the nature and structure of the constitution preclude any possible relevance of foreign law or opinion, lest we forget that the Constitution is (or at least used to be) a source of the enumerated powers of our government. Absent an affirmative grant of authority/sovereignty to other nations, there is no basis to argue that their laws or norms have one scintilla of relevance to the meaning of our Constitution.

I hope that conservative judges and policy makers stay principled to the text of the Constitution, but who could blame them for joining in the game of looking out over the crowd of foreign laws and picking out a few friends to undermine the exclusionary rule if that is the new game in town? Decisions like Lawrence and Roper, as well as the recent statements by Justices Ginsburg and O'Connor on the relevance of foreign law to our Constitution, are opening the door for it to be perfectly proper to look to what Great Britain and Canada are doing in with their repressive libel laws in order to determine what our First Amendment means.

I hope that it doesn't come to that but that is the road that the Court is going down. If it becomes an acceptable practice, you can bet a day will come when five conservatives throw Roe on the ash-heap, citing extensively to all the other nations who prohibit abortion.

The court is doing something terribly destructive to the Constitution with citations to international law. (I remind you that the precedent the Court overturned in Roper was less than sixteen years old) While it may be aesthetically pleasing for the left at this particular moment in history, if it is not stopped now, the left will rue the day this became acceptable practice. The right already does.

Posted by: MJ | Apr 15, 2005 12:21:44 PM


But there is NO point in using that point of reference unless foreign opinions of decency and governance are to be incorporated into American law.

I have to say that I don't think those espousing this bizarro theory have realized the opposite could happen. If international norms of punishment can influence American law, then they can also allow laws which Americans think are cruel and unusual to occur despite our morals to the contrary. Imagine if in 100 years Europe becomes Islamic. They decide to start chopping limbs off for petty theft. Should that effect our law on dismemberment as a form of punishment? If a state or locality decides to adopt this barbaric punishment, do we then cite the international community's consensus in contravention to American morals? Is that permissable too?

Posted by: Palooka | Apr 15, 2005 12:08:14 PM

It seems to me there is a difference between "French law says xyz and requires us to follow it" and "No developed country executes juveniles" as a point of reference.

I also wonder about biblical guidance. There was a death penalty case recently overturned because the jury consulted bible passages.

Posted by: roy solomon | Apr 15, 2005 11:45:41 AM

I'm going to have to insist on my point above: this is a debate over the legitimate sources of law, and Kerr's (and my) intuition is that only those materials recognized as such by a majority of Americans will do. All I know about the Calabresi argument is Ethan's precis of it, but from that it seems Calabresi shares the same intuition: his argument, as I understand it, is that the Framers incorporated international law, or the laws of nations, into certain provisions of the Constitution, the Eighth Amendment among them. International or foreign law is probative in interpreting these provisions, then, on an originalist interpretive theory. And originalism also rests on democratic legitimation (although it's much more restrictive than living constitutionalism). Calabresi's historical claim sounds a bit far fetched to me, but he knows better than I.

Why must the Justices take sides in the culture wars with regard to their choice of sources of law? Kennedy could rest his arguments on precedent, a few well-established treatises, and still render a left of center holding, and Thomas could rely on the same sources and come out the other way. That is, by mutual agreement, the Justices could, and generally have restricted themselves to uncontroversial sources of law, on a kind of Mutually Assured Destruction model: if you reach for your ICC convention, I'll reach for my Leviticus, and who knows where it will end?

What is dismaying about this new arms race over the sources of law is that it seems to be provoked by the left, and the left is pushing in a prima facie anti-democratic direction. We on the left have been down this road before, and have ceded more and more of the electorate to the right. The academy should reject the trend; instead, I get the sense that it really wants to justify it by complex and counterintuitive argument which will explain why, despite appearances, this is not an anti-democratic trend. All this flows from the left's self-defeating and disasterous embrace of the judiciary as its forum of choice.

Am I wrong about that?

Posted by: Joe Schwartz | Apr 15, 2005 8:50:02 AM

I just reread my post, and I don't know why I wrote "craven." I intended depraved, wicked. Sorry for the confusion.

Posted by: Palooka | Apr 14, 2005 11:40:01 PM

There is absolutely no basis to believe the 8th Amendment commands our Courts to impose foriegn opinions of decency on craven Americans. It's ridiculous to posit that by "cruel and unusual" the Framers intended what is "cruel and unusual" abroad to dictate American law.

Unless you think the Constitution means whatever the Court says it means. And in that case, what's the point of this discussion?

Posted by: Palooka | Apr 14, 2005 11:00:45 PM

Hey, all, I disagree with Kerr's analogy. I don't think its even roughly apposite (is that a phrase?). My understanding is that the hubub about reference to foreign law arose recently because of the majority opinion in Roper, an Eighth Amendment case. I think much of the discussion misses the point that Eighth Amendment cruel and unusual analysis requires a review of trends for or against a particular punishment ("evolving standards of decency"). This is a pretty unusual framework except for obcenity cases (could be wrong here, though).

The use of the Bible would be an appropriate tool to test the evolving standards of decency in, say, 70 A.D., but not today. The better evidence is to look to the local, then state, then national, and then the international community standards. The latter are especially helpful when addressing thorny and open questions like the death penalty for offenses committed as a minor (as opossed to a closed question like "whether it's okay to kill blue eyed Irishmen" - well perhaps not so closed to my long-suffering esposa!)

The peculiar Eighth Amendment analytic requirements mandate (in my thinking) that the court consider international legal trends (especially when consonant with local, state, and national trends) that are so overwhelming as to align the minority of states that still condoned killing individuals that commited their crimes while legally children with a handful of strikingly oppressive regimes.

Ultimately, though, we are talking about analyzing the contemporaneous and evolving standards and behavior. Looking to the laws of our fellow nations does that. Looking to the Bible gives us a wonderful glimpse of ancient societies, but not our own "evolving standards."

The "hubub" is indicative, I think, of a lack of information among the general public about various legal standards and the inevitable overreaction that flows from that. (By this, I indict our curricula, I do not condescend.) The Roper opinion does not forbode the EU overseeing our dogcatcher regulations. It brings to mind the last stage of the Schiavo case and the reaction of many that the judiciary thumbed its nose at Congress. It did no such thing. The court merely applied well establishe TRO factors and the Schindlers lost. But nobody talks about TRO factors because they are boring and require an explanation that lasts more than 30 seconds. Oh, what to do...?

Posted by: Davelawyer | Apr 14, 2005 10:00:14 PM

In the territory of political theory, though, we'll have a hard time avoiding Orin's point: that we will just have to pick a side in the culture wars. I'm a secularist, as it turns out. So my political theory keeps religion out of government as much as possible. But what I'm looking for is some way to distinguish Orin's cases. Political theory is surely a good way to get some results I like--but it leaves me without a rejoinder to the admittedly narrow goal I set for myself here.

We do need to get more fine-grained about what we are talking about. Maybe I'll start a new strain with some distinctions to get the conversation off the ground.

As for whether "moral sentiments abroad" are "patently ridiculous" for the Court to consider: I suspect I'd have to concede that "moral sentiments abroad" are usually pretty irrelevant to the interpretation of American law (though I couldn't say the same of how foreign courts interpret the concept of "due process of law"). But in Roper such sentiment may not have been completely irrelevant: "cruel and unusual punishment" is not obviously immune from a deeper and wider inquiry into what is "unusual."

There are also questions of public policy that courts are invariably asked to adjudicate, where foreign norms may matter. But this terrain has been well-trodden.

Posted by: Ethan Leib | Apr 14, 2005 9:49:50 PM

I think the OP and all the comments actually miss the critical error in Orin's post. The court in the JDP case looked to foreign law to determine (according to their own jurisprudence, a required determination of) what exactly the modern social standards of cruel and unusual were.

The problem with Kerr's example is not that it's religious. The bible is fine as a historical and cultural document. The problem is that the support for the death penalty in the bible provides no probative value in understanding modern understanding of what is cruel and unusual. Indeed, some of the examples Kerr uses proves this point itself, as the bible allows the death penalty for crimes in which the sheer lack of proportionality would make them banned by the 5th amendment without hesitation.

To put it this way: the view of the leaders of the largest denominations of churches (including nonchristian ones), particularly those within the United States, would have probative value...and I'd imagine they would go both ways but mainly push against the death penalty. Since the Court would be looking at the religious views for modern cultural value, rather than timeless/past religious value, I think (as a liberal) that this would be acceptable, so long as it was not the exclusive area the Court searched for in giving meaning to "cruel and unusual".

Posted by: Justin | Apr 14, 2005 9:46:35 PM

Ethan, aren't you just pushing things back a level? If someone asserts that the first amendment is best interpreted in a way inconsistent with the meaning you set forth here, and then cites as additional support the bible, what are we to do?

I don't think the text is going to do the job. What is needed isn't an interpretive theory, but a political theory.

Posted by: Thomas | Apr 14, 2005 9:27:21 PM

"But say the Court cites my article on the Guarantee Clause (available on my SSRN page, by the way) in support of its legal conclusions some day in the future. It would be hard to say that such a citation has any democratic legitimacy"

Scholarship which has to do with the US law is certainly legitimate. I doubt there would be much controversy if the Supreme Court cited a french expert on the US Constitution or its history (how many times has Tocqueville been cited?). I think you're confusing the "source." Scholarship on US law is using the law and its history as the source, the scholarship is just one interpretation of that source. Sifting through that scholarship is part of finding the best or "right" interpretation of the Constitution.

Foreign courts, however, are not in the business of interpreting American law. They deal with their constitutions and legal traditions, not ours.

That said, I think labeling the problem as one of "democratic legitmacy" is not terribly helpful. The appropriate question is: what are the valid sources of American law. I don't see how one can include in those sources moral sentiments abroad. That seems to me patently ridiculous.

Posted by: Palooka | Apr 14, 2005 9:24:36 PM

Kerr's wrong. It IS a soveriegnty issue. There is no reason to cite international opinion of homosexuality or the death penalty unless international opinion carries weight in our legal system. It, of course, does not. It's just one of many problems in what is today's grab-bag jurisprudence. A dash of legislative history, a smidgen of international opinion, and a good dose of sophomoric philosophy, and you have what passes today as "interpretation" of our nation's laws.

Sovereignty issues aside, the approach is dishonest. America has a unique and exceptional Constitution. I do not think the Court wishes to throw away the exclusionary rule, separation of church and state, exceedingly liberal freedom of speech, or abortion-on-demand because those are unique to America or are uncommon in the international community.

To be sure, there are limited cases in which I can accept the use of international law (such as in the interpretation of treaties). Interesting as the acceptable cases may be, let's be clear--we are talking about Lawrence and Roper v. Simmons when we criticize the Court's use (or misuse) of international law.

Posted by: Palooka | Apr 14, 2005 7:10:11 PM

Elegantly done, as always. To be sure, the plain meaning of "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" tells us nothing about what is really at issue in this conversation: proper modes and sources of judicial interpretation. And I am very honest in my original post that I can't quite say what is wrong with your very interesting analogy.

Still, I think the First Amendment is at least a clue that we shouldn't look to establishments of religion in trying to understand consitutional provisions. The Preamble--MJ's textual anchor--just didn't seem to counsel against foreign sources in the same way.

I haven't made it through the new S. Calabresi article on the subject but something seems right about its conclusions: that there are domains where the Constitution signals to us where foreign sources might be more relevant than others. I believe he concludes that in the 4th and 8th Amendment contexts, it is appropriate to look to other countries because these provisions invoke reasonableness and typicality on their face. I'm not sure what I think of that, but I do like the idea that the document may be signaling to us what sorts of authorities are relevant when. And I would say that the First Amendment is signalling to us that biblical reasoning is okay just about never.

To me, Zorach is a stain on the U.S. Reports. Same with Bowers and Moore. Precisely because they invoke our Judeo-Christian heritage.

Posted by: Ethan Leib | Apr 14, 2005 6:21:00 PM


Is your view that the First Amendment bars the the Supreme Court from noting that its view of the Constitution happens to be shared by a Biblical rule? If so, can you explain how you reach that conclusion?

Posted by: Orin Kerr | Apr 14, 2005 6:03:34 PM

Sometimes at least the citation of foreign law seems completely reasnable and right, and these are often the cases that get people the most worked up. Consider Lawrence. One reason why it was perfectly reasonable, perhaps necessary, to cite what Europe was doing was that the majority in Bowers had done much the same thing, saying that all of western civilization had had such rules. Given that these rules had been turned down in Europe since then, this helped undercut the argument in Bowers. So, it was a useful part of the argument for showing that Bowers could not stand. I don't know how far this sort of thing applies to other controversial cases, but it seems important here.

Posted by: Matt | Apr 13, 2005 9:13:01 PM

If we're letting Americans vote with their remote controls, then by looking at The West Wing's ratings I think we can preclude Barlett from being any form of precedent.

Posted by: Polybius | Apr 13, 2005 7:46:30 PM


Your point, as I understand it is that the text of the first amendment precludes the use of a religious basis to interpret the Constitution.

My first point is that the preamble states that the Constitution was enacted by citizens of the United States for the United States. Doesn't that provide the same immunity from foreign law that the first amemndment provides from religious law? If not, why? My second point is that mere silence on a matter does not mean that it is permitted, the (perhaps not so) obvious implication being that the very nature and sructure of the Constitution itself is highly suggestive that it is immune from foreign law.

If I wasn't clear; those are my points - the Constitution is immune from foreign law both by the text of the preamble and its nature and structure, every bit as much as it is immune from (for lack of a better term) religious law.

Posted by: MJ | Apr 13, 2005 7:09:03 PM

Or maybe there exists a third option: that legal reasoning should be seen as distinct from authority. If your law review article legal reasoning were persuasive, the Court could adopt it. Citing you, then, is gratuitous -- a courtesy, and one I'm sure you'd appreciate, but neither here nor there.

But that is really by the way. The issue here is not one of reasoning (or "analysis"), but one of authority, I think, and that is because the guarantee against cruel and unusual punishment can only be given content by authority, not by reasoning from first principles.

Posted by: Joe Schwartz | Apr 13, 2005 6:16:19 PM

Hey - I thought you lived in California. You're in my building?

So how would you defend the use of law review articles, then (so much is contained in that word, "probative")? I think you're attacking from the more controversial side, that there exists a non-democratic mode of legitimation. What is it?

Posted by: Joe Schwartz | Apr 13, 2005 6:11:26 PM

Hey, Joe. Welcome! Funny that we work in the same builing but communicate only this way.

I do understand the gist of your point--and you know that I'm all for democratic legitimacy. But say the Court cites my article on the Guarantee Clause (available on my SSRN page, by the way) in support of its legal conclusions some day in the future. It would be hard to say that such a citation has any democratic legitimacy. But it would be harder to say, I think, that it would be inappropriate if the legal analysis were probative.

Posted by: Ethan Leib | Apr 13, 2005 6:06:13 PM


I take your point that the First Amendment would preclude, say, an explicitly Episcopalian interpretation of the Constitution. But I think Kerr's point is more straightforwardly about the legitimate sources of law, rather than legitimate modes of reasoning. Kerr (and Justice Kennedy) complicate the question somewhat by merely "finding confirmation" (in the words of Roper) for their holdings in those sources, rather than finding authority (binding or otherwise).

But the question remains the same: what texts or legal communities are among the legitimate sources of law on which the Supreme Court may rely or to which it may refer? Stated that way, I think Kerr's intuition is this: only those sources of law that have democratic legitimacy -- i.e., that are recognized as legitimate by a sizeable American majority -- should be counted among the sources of law. (Your post points out that even if a source has democratic legitimacy, the Constitution may impose other limits if, for instance, reliance on (or reference to) those sources were to violate an individual right protected by the First Amendment).

If you're going to defeat Kerr's argument, you're either going to have to argue that international law does have democratic legitimacy, or else that there exists another, non-democratic test for the legitimacy of a would-be source of law.

Oh, and hi! Enjoying your blog very much.

Posted by: Joe Schwartz | Apr 13, 2005 5:54:07 PM

We aren't talking about "applicability" (i.e., using foreign law as a rule of decision). Nor, in fact, are we talking about the merits of taking judicial notice, as it were, of foreign decisions. We are simply pursuing the differences in the analogies. Stay analytically focused. We'll blog about the merits another time.

We can disagree about the persuasiveness of any particular foreign decision. Indeed, the decisions of Saudi Arabia may be no more probative than the decisions of the fictional court on the West Wing. But that is a wholly different matter from the question of the exclusion of a set of authorities by the very text we are seeking to interpret--one that strongly suggests on its face that certain forms of interpretation are not to be consulted.

On the other hand, maybe "securing the blessings of liberty" requires us to look to the source of that blessing, a religious word I can't deny....

Posted by: Ethan Leib | Apr 13, 2005 5:46:21 PM

You don't think the preamble's "We the people of the United States...do ordain and establish this Constitution for the United States of America" is a pretty conclusive basis to infer that foreign law, made by persons other than of the United States for countries other than the United States of America, is inapplicable?

There is not one syllable in the Constitution that confers a single power to any foreign government. The argument saying that because the Constitution is silent as to foreign law, it's use in interpreting the document may be permissible is the equivalent of saying that because the Constitution is silent as to hour long dramas and sitcoms, the Supreme Court may legitimately cite to statements by Jed Bartlett and George Costanza to determine evolving standards of decency.

At least the citizens of the United States vote for Bartlett and Costanza with their remote controls.

Posted by: MJ | Apr 13, 2005 5:33:37 PM

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