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Tuesday, January 24, 2006

Constitution as Contract: Ramifications for the Use of Foreign Law

When I published my short TNR piece on the Alito hearings, many conservatives wrote me  to quibble with one of my claims in particular.  I had argued that some might have been surprised to hear Alito embrace the Supreme Court's consideration of foreign legal interpretations in construing treaties (even though he embraced the canonical conservative commitment of avoiding consideration of foreign legal interpretations when construing the domestic constitution).  They argued: "Scalia thinks the same thing so of course you are wrong that this would surprise anyone.  Surely if Scalia thinks it, all conservatives must be okay with it."  Admittedly, some had more nuanced views -- but of course those weren't the people who might have been surprised.  I may have been wrong that anyone was surprised, but I suspect there are some conservative congresspeople who don't quite understand that the best arguments against the use of foreign legal interpretations work especially well in the constitutional context but less well in the treaty context.

One of the arguments for why it is probative to consider foreign legal interpretations in the treaty context is that a treaty is similar to a contract between nations.  In interpreting contracts, trying to assess the views and interpretations of all parties to the agreement can help uncover the an ambiguous text's meaning.

I wonder whether this basic insight that provides justification for the consideration of foreign treaty interpretations doesn't also provide some basis to justify considering foreign  interpretations even in the constitutional context. 

The argument would go something like this.  Our domestic constitution is not merely an internal social contract.  Indeed, it is relatively hard to see it as such, since few of us has offered anything like overt consent or assent to its provisions.  Admittedly, our officers (and our newly-minted citizens) take an oath to uphold it and defend it -- but that just begs the question of what it means to uphold it and defend it.  No one denies that there are dead letters in the document -- and we certainly don't live by the letter of the contract.   

Even granting the bindingness of the document on ourselves and our officers, it would be naive for us not to recognize our constitution's role in the international order.  The international order is predicated on the recognition of states -- and each state's recognition in the international system is in some sense dependant on its constitutional structure and political way of life.  In short, our constitution does not just bind us internally, but is a public statement to the nations of the world about how we intend to live.  Our constitution is not a private contract but a public charter -- a statement of incorporation that engages us in the international order.  Accordingly, that document is answerable to the world in a substantive way.

This abstract argument may not do much.  It is still subject to all kinds of objections to the use of foreign legal interpretations.  One especially damning one is that it is too easy to cherry-pick certain jurisdictions we like and use them to get to the results we want.  But, all the same, seeing the constitution as not merely a contract with ourselves but a contract with the international order is an interesting and potentially useful argument against those conservatives who are so sanguine about using foreign legal interpretations in the treaty context.  Indeed, there is strong evidence that the Framers were especially concerned in drafting their document with world opinion: Article III in particular was included at least in part to let the nations of the world know that there would be a national judicial authority capable of enforcing the law and forcing the United States as a party to deal fairly with other nations in the world community.

I'm interested in reactions and thoughts as I develop this argument into a more fleshed out idea.

Posted by Ethan Leib on January 24, 2006 at 01:51 PM in Constitutional thoughts | Permalink


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The Constitution of the Confederate States of America (address below) provides interesting historical insight to this controversy. Its meaning is clearly dependant on the document it emulates. How it was altered, and not altered, reflects the framers' original intentions. If the Civil War ended in the establishment of a second nation, would its citizens today deny the relevance of the US Constitution in favor of a more contemporary analysis of its "clear meaning?" Should we not look to the Magna Carta or the legislation and political treatises of 18th Century to interpret the language used by European elites? I suspect that the writings of French Enlightenment philosophers provide more insight into the intentions of the founding fathers than any Old English Dictionary.


Posted by: James H | Jan 27, 2006 1:35:41 AM

I question Simon's remark that contract terms don't change -- where a term is ambiguous, we look to course of dealing, usage of the trade, etc. Anyone would be hard-pressed to claim that the US Constitution doesn't contain ambiguities, which in turn explains why we look to public meanings at the time of its adoption. However, constitutional interpretations develop over time in a manner similar to regularized practices between two parties to a contract. Not all of the latter are written down as formal definitions or modifications, but the former show up at least in the US Reports (whether or not one thinks they should). If we accept that premise (which of course many don't), what prevents us from taking the analogy a step further and incorporating contemporary public meanings to interpret terms or even looking to other countries' interpretations of constitutional provisions similar to our own in order to gain insight into "trade usage"?

Posted by: tim | Jan 25, 2006 1:44:26 PM


To follow your latest analogy, Mary's perspective might be relevant if Peter or Paul had intended for the contract to be relevant to their interactions with her. I don't know the exact details of third-party beneficiary contractual interpretation offhand (shame on me--I teach contracts) or if the common law traces my intuition. But I wouldn't think it all that hard to imagine circumstances where Mary's views matter. If Peter and Paul form a written alliance and Mary is debating dealing with their alliance and ultimately decides to do so predicated on a reasonable reading of their alliance, it wouldn't be all that odd if, in settling a dispute about the relevant ambiguous provision between Peter and Paul, an arbitrator took into consideration what people like Mary thought it meant. That would be probative of what reasonable people for whom the provision was drafted thought the provision meant.

Posted by: Ethan Leib | Jan 24, 2006 6:28:56 PM

Alternatively, another contract thought: Peter and Paul live in New York. Peter signs a contract with Paul. Mary lives in Los Angeles. She's never met Peter or Paul, but she reads a copy of the contract on Paul's blog. Is her interpretation of the contract relevant? Does it matter if her interpretation is different to that of the actual parties to the contract? What about if her interpretation of the contract is entirely different (and entirely atextual) to the plain meaning of the contract's terms? Are there any circumstances in which Mary's interpretation is relevant, except if her interpretation is exactly the same as Peter and Paul's interpretation, in which case, what's the point in asking her opinion?

Posted by: Simon | Jan 24, 2006 4:48:03 PM

Simon: I do think that it would be relevant what the world would understand by "you will be shot". And it is a great analogy. Not one that is really likely to generate much disagreement. But if reasonable people could differ about what the sign means, I do think that would be relevant.

Harry: And I had none of converting you out. But I thought I might have gotten you to see a different way of seeing that originalism could bless the practice (on either the question of interpretive intent or actual original first order intent).

Posted by: Ethan Leib | Jan 24, 2006 4:35:02 PM

Well, I certainly had no aspirations of converting you to originalism.

Posted by: Harry | Jan 24, 2006 4:32:06 PM

Ah, and to the extent that I've contributed to caricature, I regret that. That is really not my agenda, as should be obvious to any reader. And it would have been really hard to read my TNR piece that way anyway, since it was meant to suggest that the caricatures of Alito and the hearings generally were being somewhat disconfirmed (on the day it was written anyway).

Posted by: Ethan Leib | Jan 24, 2006 4:30:06 PM

With the caveat at the end of my last post in mind, one other thing that jumps to mind. Ethan, if we assume the Constitution "does not just bind us internally, but is a public statement to the nations of the world about how we intend to live . . . not a private contract but a public charter -- a statement of incorporation that engages us in the international order," couldn't we analogize it to a signpost at the border? "Hear ye, hear ye: this is the border of the United States. We, the people of the United States, in order to...," and so on. Now, if the government sticks a sign up outside Area 51 warning that anyone climbing the fence will be shot, is it relevant to determining what the sign means that a particular person reading that sign thinks that "shot" means "with water pistols"? The sign was a public statement about how the U.S. intends to guard its property, but its meaning is not in the eye of the beholder. Thus, is it any more relevant that a court in France, today or in 1791, thought that the guillotine was not "cruel and unusual punishment" for the purposes of the eighth amendment?

Posted by: Simon | Jan 24, 2006 4:26:33 PM

Harry: fair points, all. I don't think this is a slam dunk argument. I think it is an interesting one and I'm trying to see if it resonates with anyone other than me. I do think your "consent of the governed" material is just what I'd expect from originalists -- and on this point we'll just have to differ. Your prudential argument for constitutionalism may be valid -- but hardly warrants absolutism.

Posted by: Ethan Leib | Jan 24, 2006 4:24:46 PM

I wonder whether this basic insight that provides justification for the consideration of foreign treaty interpretations doesn't also provide some basis to justify considering foreign interpretations even in the constitutional context.No, I don't think it does. We look to the interpretations of our co-signers because the object of a treaty is to promote harmony among the high contracting parties, and since all parties are equal in their interpretation, it is relevant to know how other countries have interpreted a treaty in our interpretation. See Olympic Airways v. Husain, 540 U.S. 644 (2004) (Scalia, dissenting), but cf. concerns here. But the terms of a contract do not change with the passage of time, and so surely, the comparison to the Constitution is inapt: an interpretation of another country is irrelevant because it is not interpreting our Constitution, and even if it were, that country is not a party to our Constitution. A more relevant comparison might be, if we sign a treaty with Germany, we might look to how German Courts have interpreted that treaty, but we would not look to how they have interpreted a completely different treaty with a different country.

On the other hand, as previously discussed, I don't accept the legitimacy of foreign law in interpreting anything other than treaties, period. But, as one of those people who you mentioned, "what it means to uphold it and defend it" to me includes defending it against enemies foreign and domestic, which includes attempts to subvert it using foreign precedent, and I simply cannot see the logic that suggests the Constitution "is answerable to the world in a substantive way".

I'm sorry if this isn't fully lucid, I'm only an hour out of the dentist and still a little woozy.

Posted by: Simon | Jan 24, 2006 4:19:32 PM


Do you really think of the U.S. Constitution as a contract with the international legal order? What are the terms of the contract? What's the consideration?

Posted by: thelawgal | Jan 24, 2006 4:19:25 PM

Well, Justice Scalia often refers to old English understandings of terms of art like "due process" and "cruel and unusual punishment" because he thinks those materials are relevant to understanding what the actual words in the Constitution mean, or would have been understood to mean to an average U.S. citizen voting to ratify the Constitution. I don't think there is a lot of controversy among conservatives about that.

As for whether historical public meanings of the U.S. Constitution in other countries (like France) are relevant, I don't think so. I think the fundamental insight that this nation was founded on was the claim in the Declaration of Independence that government can only be legitimate if its power is derived from the consent of the governed. The reason the Constitution is binding law is that it was once ratified (and thus consented to) by the polity in this country. (Of course, that was an imperfect ratification, composed of mostly white property owners, but all social compacts are to some extent imperfect, and yet most of us recognize that the world is a better place if we live with them). The reason public meaning originalists fixate on public meaning is precisely because they want to know what those who consented to this constitution should have understood they were consenting to.

As a result, I don't think the public understanding of late 1700s France (to the extent they would have had any public understanding of legal phrases written in English) is relevant, unless there is some evidence that that public understanding somehow contributed to the public understanding of the U.S. voters.

Also, sorry if my first post came across as a little over the top rhetorically. But it does seem that this business about conservatives being surprised that one might consider international sources to interpret a treaty is based on a silly caricature of conservatives. I know a lot of people who are quite conservative/originalist in their legal orientation, and I've never heard anyone even suggest otherwise.

Posted by: Harry | Jan 24, 2006 4:15:04 PM

Harry: Thanks for your perspective. I'm sorry you didn't find the discussion useful at all. But as far as I can tell, you've merely re-asserted that there is a wide gap between treaties and constitutions, hardly a controversial proposition. I apologize that my attempt to bridge the gap for you was unsuccessful.

To the extent, however, that you've developed the "originalist" objection to the use of foreign legal sources (the standard objection from the right, to be sure), try this on for size: If you are a "public meaning originalist" (i.e., it matters to you what the public meaning of the text would have been at the time of ratification), under my argument wouldn't the public meaning in another country be relevant? So, even though what the French think about "due process" TODAY might be irrelevant to you for US constitutional interpretation, what the French thought about "due process" at the adoption of the 5th and 14th Amendments might not be if my argument has any traction. What say you? And please spare us the rhetoric.

Posted by: Ethan Leib | Jan 24, 2006 3:43:13 PM

With respect, I think your insight falls far short of a useful argument "against those conservatives who are so sanguine about using foreign legal interpretations in the treaty context." As I understand the general conservative objection to the use of international legal authority in constitutional interpretation, it basically goes like this: "The Constitution has meaning. We should attempt to figure out what that meaning is by figuring out what a fair meaning of the words in the Constitution say. The courts of Country X interpreting the words in their own constitution simply don't provide any useful insight into the meaning of the words in our constitution."

Treaty interpretation, on the other hand, is quite a different situation. In interpreting a treaty between the U.S. and Country X, the construction that Country X puts on that treaty is certainly relevant to how our courts should interpret that same document. I don't understand how anyone could disagree with that, conservative or not. Perhaps there can be disagreement about how much weight we should give to that other interpretation, but of course that other interpretation should at least be considered. Perhaps there are some conservatives who have never thought about the issue that might be "surprised" by that, but I don't understand how anyone can think about the issue for more than a couple minutes without realizing that obviously the other treaty parties might have relevant insights into the meaning of the treaty.

There is a big gap between the contexts of treaty interpretation and constitutional jurisprudence. I fail to see how your argument bridges that gap in any meaningful way. Even if you are right that there were international concerns involved when the constitution was drafted, that doesn't mean that the contemporary courts of Canada or the E.U. have anything insightful to say about the meaning of the U.S. Constitution.

Posted by: Harry | Jan 24, 2006 3:11:03 PM

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