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Wednesday, January 11, 2006

On the Alito Hearings

I've got the lead story in The New Republic today on the Alito hearings.  Here's a pass-through link -- or just go here.

[UPDATE: Former Prawfs visitor Will Baude quibbles with me here.  Will is right that even Scalia agrees that treaty interpretation can (and indeed, should) draw upon foreign legal sources -- and that undermines my claim in the article that conservatives may have been surprised to hear Alito adopt that position.  But not all conservatives sign onto all that Scalia does: Didn't he, like, reject the Bush Adminstration's position in certain recent cases?  And didn't that surprise some conservatives?  Anyway, I take the point.  Maybe calling it a "surprising remark" wasn't very careful.  But it was more nuanced than what we sometimes hear from conservatives who take an across-the-board "no foreign law in our courts" approach.  Maybe that's a strawman; but my sense is that, over time, the debate about foreign law may be producing boundaries that all -- left and right -- can live with.]

Posted by Ethan Leib on January 11, 2006 at 12:08 PM in Article Spotlight | Permalink


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To offer a possible example, and perhaps thus prompt some debate. In Muscarello v. United States, 524 U.S. 125 (1998), which I choose because both the majority and the dissent offer essentially textualist arguments, the difference between the court and the dissenters turned on whether one "carries a firearm" in violation of 18 U.S.C. §924(c)(1) (requiring that a person who "uses or carries a firearm" "during and in relation to" a "drug trafficking crime" is subject to a 5-year mandatory prison term) if one has it in one's car, or about one's person. In other words, is "carry" synonymous with "bear" or "transport"? I don't know - does "carry a firearm" connote the same thing in English and Spanish?

Posted by: Simon | Jan 12, 2006 11:06:27 PM

I'm with Will - and with Justice Scalia, which is a pretty good place to be - on this one. I also think I'm one of the few regular commenters here that really voices objections to the use of foreign law, but those objections (recently aired again here) principally revolve around the relevancy of foreign law. I suppose it just seems obvious to me that when you have a treaty, how that treaty has been interpreted by other signatories is entirely relevant, just as when one looks at an ambiguous constitutional provision, one might reasonably look to how that provision has been interpreted by various jurisdictions to which it applies.

I'm glad you brought this up, actually, because I have something I want to discuss on this issue. The issue is more complicated in the case of treaties - and this is actually the reason why I am tooth-and-nail opposed to any growth in bilingualism in American legislative process. Languages do not necessarily translate exactly.

Consider a treaty between America and Russia, for example. Russian is a very different language, and so even if that treaty was written in English, one cannot simply translate it into Russian. All translation is, of necessity, an excercise in paraphrasing the original as closely as possible, taking into account cultural and linguistic differences. As a textualist, when I try to interpret that treaty, it's obvious what I'm looking for - but it isn't obvious that what I'm looking for actually exists in the case of a treaty, unless we are willing (and indeed, able) to say that the plain meaning of the English text is authoritative. Yet why would our Russian friends agree to that? They signed the Russian text, and what seems to me, reading the English version, to be the key phrase in the English text, may not even exist, let alone mean the same thing or have the same critical import, in the Russian text.

I don't speak sufficient Spanish to know whether this is a fatal problem, but I understand enough about different languages and cultures to know that it bears worry and consideration.

Posted by: Simon | Jan 11, 2006 8:48:51 PM

Fair enough.

I mean, if the left and Justice Kennedy become convinced that "foreign law can be cited in treaty interpretation but not in constitutional interpretation" is a bounded and acceptable compromise, far be it from me to discourage them.

Posted by: Will Baude | Jan 11, 2006 8:19:19 PM

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