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Wednesday, April 01, 2009

Counting (Foreign) States?

The new issue of the Harvard Journal of Law and Public Policy is out, and it includes some papers from the 27th Annual National Federalist Society Student Symposium on Law and Public Policy.  As seems common with this fine event, the proceedings include some fantastic short articles by terrific scholars, including especially good pieces by Doug Laycock, Henry Smith, and our own Rick Garnett -- and the paper I discuss below, by our own Rick Hills.  (As also seems common with the papers from FedSoc symposia, it also contains a couple of clunkers -- pieces that, in trying to refute the idea that law is politics, seem rather to prove the point.  With all due respect, the piece by Justice Stephen Markman of the Michigan Supreme Court seems to fit the bill this time, and it is very effectively eviscerated by Richard Primus.  Similarly, a recent issue included a terrible piece by Phyllis Schlafly.)

The paper I want to call to readers' attention is Rick Hills' very interesting short piece, Counting States.  Rick writes that the Supreme Court "frequently bases federal constitutional doctrine on state law, often doing so by counting states' laws in a variety of doctrinal contexts to determine the legislative consensus among the States. . . . [A]cross this doctrinal variety [in which counting occurs], state counting involves two common elements: judicial use of state law to inform the content of federal constitutional doctrine, and judicial evaluation of states' laws collectively rather than singly to determine a state 'consensus.'"  He suggests that, whatever the Court says or thinks it is doing when it counts states, the practice is best understood not as using state counting as a source of national law, but as a limit on national law: state counting uses the states' consensus "to place an outside limit on the judiciary's enforcement of its own view of the constitutional norm."  He likens it (if I understand his argument) to Justice Harlan's tradition-based methodology of due process in Poe v. Ullman.

It's a very interesting piece.  One question I have about it is whether the distinction is as stable as Rick suggests: whether it is always possible to tell the difference between state counting as a source of national law and state counting as a limit on national law, and whether it is always possible to tell what a "limit" on national law is.  That's just a tentative thought, however.

What I find more interesting is the dog that doesn't bark in Rick's article, despite his extensive discussion of cases like Atkins v. Virginia: the use of foreign state counting.  I know Austen is finishing his rotation here, but I hope he'll weigh in, since he's discussed these issues in greater depth than I have.  Still, it seems to me that much of Rick's argument for state counting, and particularly his arguments for why state counting is less disturbing than some might think, are potentially applicable to the use of foreign states' judgments in the same cases.  For instance, he writes that the Court treats state laws as "'relevant' but not decisive evidence concerning the national standard of decency that it enforces" in Eighth Amendment cases, because the "Court does not . . . suppress outliers from a state consensus unless those outliers offend the Court's own view of the constitutional norm."  This seems to me to be a fair restatement of what some defenders of the practice of citing foreign courts have asserted: that foreign state counting does not import "foreign" values, but rather is a means of elucidating the Court's own, ultimately home-grown, view of constitutional norms.  It's interesting, too, in this regard, that he references Harlan, since Harlan said in Ullman (and is quoted by Rick) that he looked to "what, by common understanding throughout the English-speaking world, must be granted to be a most fundamental aspect of 'liberty.'"  Shades of Atkins and Lawrence!    

Perhaps Rick will also weigh in and tell me why I'm wrong.  But it seems to me that his article could be usefully read as a (partial) defense of the practice of citing foreign court decisions as well as state court decisions.

Posted by Paul Horwitz on April 1, 2009 at 10:49 AM in Paul Horwitz | Permalink


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Thanks for the mention of my piece, Paul. Just a clarification: I distinguish between Harlan's "tradition-based theory" and the sort of state-counting that goes on in Atkins (page 26 of the essay). Harlan's theory strikes down states' laws only if they are inconsistent with the vast majority of other states' laws -- say, laws like CT's extreme version of the Comstock Act at issue in Griswold v. CT. Atkins, by contrast, strikes down sentencing policies adopted by 40% of the states representing about half of the nation's population. Such states are hardly flagrant outliers from a solid national consensus.

I suggest the only point of polling the states in cases like Atkins is to make sure that a theory of justice devised by the justices does not depart too far from the beliefs and values of the median state. It hardly follows that state laws struck down by the Court depart drastically from the views of the median state: It might be that both the Court's theory and the state laws that the Court strikes down are both pretty close to the median views of a closely divided nation. This is what I mean when I say that state consensus is merely a limit on, and not a source of, the judicially defined norm: The Court essentially makes up its own theory of justice, counting states' laws only to be sure that judicially defined morality does not contradict popular morality in a majority of states.

Could the Court also count up foreign nations' laws for such a purpose? Sure, but my own view is that the Court would not be very concerned that its judicially defined values violate international norms. Otherwise the Court would not have adhered as much as it did to the doctrine of Roe v. Wade (for instance, the viability line), which is far more libertarian than the laws and norms governing abortion in most other nations. Likewise, the Court would not stick with Miranda's exclusionary rule, which is an international outlier.

My own realist -- perhaps cynical -- view is that the Court simply does not want to be lambasted by domestic politicians for adopting norms inconsistent with the views of a majority of those politicians' constituents. In other words, the Court is behaving like the majoritarian institution that Michael Klarman claims that it is: It is taking crude polls to make sure that its decisions fall within the zone of acceptability for most Americans. Given that the Court's state-counting as serving purely domestic political purposes, there really is not much point for the Court to be overly attentive to the norms governing foreign regimes: Contradicting German or French norms may raise a few eyebrows at the next conference in Davos that Justice Kennedy attends, but it will not result in a backlash that will be felt in judicial confirmation hearings. Contradicting the norms of Ohio or other "median states" will. I submit that state-counting of the Atkins variety is to insure that such a domestic backlash does not occur.

Posted by: Rick Hills | Apr 1, 2009 9:44:21 PM

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