The relevance of foreign legal materials in U.S. constitutional cases: A conversation between Justice Antonin Scalia and Justice Stephen Breyer

Abstract

Among the most hotly disputed questions at the United States Supreme Court in recent years has been whether it is desirable or even appropriate for the Court or individual justices to rely on judicial decisions or other materials from other countries in deciding American constitutional issues. Two of the Court's most important rulings in 2003—those relating to whether homosexual conduct can be criminalized consistent with the Constitution and whether the Constitution authorized racial “affirmative action” to assure a diverse student body—relied in part on foreign law. More recently, the Court used foreign law in its opinion that concluded that the death penalty could not be constitutionally applied to those under eighteen years of age. There are many other examples of the use of foreign law in American constitutional judgments. In their judicial opinions and speeches Supreme Court justices have expressed sharply differing views on the use of foreign law in its cases. But there was no face-to-face discussion between Supreme Court justices until January 13, 2005, when Justice Antonin Scalia and Justice Stephen Breyer had an hour-long “conversation” on the validity of using foreign law in U.S. constitutional cases. A very lightly edited transcription of the discussion, which has been approved by the two justices, is presented below. The origin of this event was a meeting among Professor Michel Rosenfeld, president of the U.S. Association of Constitutional Law, Professor Kenneth Anderson of the Washington College of Law, American University, and myself. The U.S. Association is an organization of law professors, judges, and practicing lawyers that, in cooperation with institutions and individuals in the U.S. and abroad, explores the increasingly important field of comparative constitutional law. It therefore seemed natural for us to invite the two justices to elaborate their views on the use of foreign law for the benefit of the general public as well as the legal profession. We are deeply grateful to Justices Scalia and Breyer for accepting our invitation and for thoroughly and engagingly addressing the issues in the short time that was available. Joining the U.S. Association of Constitutional Law, as a cosponsor, was the Washington College of Law, at American University, in Washington, D.C., where the conversation took place before a large audience. This law school has long focused on comparative and international subjects and its dean, Claudio Grossman, has been a leading figure in the field of international human rights and other aspects of the subject that Justices Scalia and Breyer discussed. The warm welcome and efficient arrangements at American University's law school did much to make the event a success. Dorsen: This is a conversation between two leading Supreme Court justices that we look forward to hearing. I'm sure we that we Scalia to be Scalia and Breyer to be with very But the justices have that a questions on the and or questions as we are and to Justice to in and the conversation can we the use of foreign decisions in U.S. constitutional of foreign law are we we this to foreign constitutional where it international as the of to which the U.S. is a we the use of foreign decisions in U.S. we to be or or for foreign decisions are not to be in U.S. constitutional the that the U.S. a and legal with the of the this is is that in to the of a the or to a in the of the for other is it appropriate for our to use and to foreign materials in the of deciding constitutional the to the of the American constitutional it the for constitutional and invite our to to or of those and to make in their most of those questions be to Justice Breyer not use foreign law in the of the United States use it in the of a In in a recent from the most of to use foreign this had been a by foreign of countries that and that was not the have as an But that the of a to with a that is the for the we to the views of other much as we to the views of is to the a not the very But are using foreign law to the of American constitutional be sure that on the that we have the and legal as the of the But we have the and legal as the of the and the of the Constitution that to be have been the are of that make very the have a of for many of the in for of the countries of are to their The to of is a in the law in It is that has the it the that with a of long as that that was is of The is there is other in the that the U.S. we of our we are of countries in the that on at time to we that other countries a we that, the Court we be by foreign we use foreign law it with the justices the to we use the foreign and when it we use we foreign law in the on homosexual not foreign the foreign law of countries that with the of the But we not a foreign law in the of cases. U.S. on it to be whether we to be by the views of it to be is the for it with other to that of to Dorsen: to Justice law a where Justice Scalia to foreign law. In to for us The of the U.S. Association of Constitutional is and Justice Scalia that the United States from other in that law is not from on not even from the Supreme law from a We justices a in that But we are part of are law professors, and The to a of conversation is among judges, among professors, among of the among those among those and of among those with at the from that We in that when we and we can when we the law and the it is important that we on to general to the of the very we are not that well among the general of a of the Supreme in the Justice with to the In many Justice Scalia and foreign law can and judicial in the United States Supreme Court and in the other as But the where we not The at a where professors, a of a and and the among the of The to the Supreme Court's use of foreign law in its was had in a time that was the that Justice Scalia and at that, when to foreign law in a constitutional well that the decisions of foreign not American But those a human as a with a legal to that which the of a legal to the of our to human to the rights that our Constitution to an foreign have to an have to human to an have that in legal judicial not legal questions with is an to human questions where much is to be on of the to the have a and a human a of a has had to a not that has It not The are it in be a In foreign are to institutions that and human rights or to the of constitutionally human The United States Supreme Court has in this to our we to their the those The that we and are their to legal The are their opinions and a that was not much The had a to the that Justice Scalia we to to foreign we we can under we we have to opinions on of the we we have that be The to questions in the of the judicial We rely to We rely judicial to assure a and of foreign of of not to foreign to legal materials as that or other to materials that that the as well as those that in a where took the that the use of school had to the that in countries with of school most of those for and that no to and views even a of our Court We that we are not in But we it is for our that is to those the validity of the The to is on for it is and using it as a of where The which is in to the make no law an of or the or the of or of the or the of the to and to the for a of The Supreme Court in that it was constitutional for to that use to or U.S. The for a which a law and a of to this opinion in a in the Supreme the not which it But the lawyers to it from many foreign in for is time be of the of foreign issues very to the at the use of time is the to the use of in which of our Court have to foreign law have the death have the constitutional rights of subject have the foreign law But other issues as to foreign law not at the of those issues. United In to the use of foreign law that that a But the lawyers an and foreign and to that the using it as for not as that is Dorsen: Justice it to that to the foreign law. is to is it that to is it that foreign law be to an American when not the used a of foreign law. the of of the the of that with the of other countries is very in a But is it in of to when the American Constitution is to to it it was by the to when it was it has used to be until years have we have that foreign law is with and the of from and to the is use foreign law on the But law. It be to for has of foreign law is Justice Breyer Dorsen: But law that the this to be is in of as the has for U.S. the to and as the use of its and a to law that that, and use But to the Justice Breyer have the that the Court years or in the and and that the Constitution is not It the for when it was it from to to this is a from our of that the of a that I'm that that human is in we and It to that the of the of was to not to and have it a the and for as a using that is The of of American the of of the not the of of other countries that have our that have our that have our as of American of foreign law can foreign law to Breyer an that the Court this of the the not we much our to the for be which is the on of and in much to for But it is for to be in the of of American The in which it to use foreign law is have a to the of the to as a not for the of the for the of of American I'm for is the to this in as an for that the views of other judges, the the law of American not are a of at the of the and that views on are not the views of at it for to when judges, can make the of be on of as the death the in which the use of foreign law is not to as and not to the of American which we did for a In the for we the death penalty for to be the had it for that could that American on the subject had But we have that In our eighteen of the that have to it the The other it to the as to the was and whether the it we that even eighteen of that has a in its that not the of the of the to that to it with foreign and to it foreign law. very well at cases. U.S. is a have that many are not to the in with questions of constitutional to a general public or even a with their of law and a Supreme Court used to to the and I'm The in not to for a was a have have the an important a that that a law could not United United U.S. In that the that the have to a to the in the the to use to law. that in the and in use that a that the of an the very of is to to that of are consistent at with to The there is an foreign law has to with in cases. It has a to with foreign law in death penalty cases. an of the not did and was to in in even in the law of that a in deciding and to the United States or to the United States of us has in those and have been a from a of a for in a the it a and a of the for the to a of to on death for years before we the and that the to the could well be In to a by the in a an of their cases. even to their to a by the Supreme Court of and by the Supreme Court of to United that But did not to decisions to decisions that the other as have a in to a from the human rights of the But that by a was and from an did not of foreign decisions But did that the is not a human and American and foreign are human using legal with a human to those other their even the of a that under the American Justice with opinion that could not American have to of had a But with the have the foreign that the foreign are not have the those using with to that the for are have an that look at foreign The that legal even in the of for But the a that the of presented the that it was and to long between the death penalty and We that we have of the of using foreign law is that the that can for that have an can other of the that for years under of death is and that other countries have which to and that the it years is the to that are In before the death by the public opinion in that the to the and lawyers and law the death it was the it a for the was to a of that be two the years to been to the of an that we not to the But most of the opinion of a or a of a of law that have to with It is been to to make this a very in it for and for the have that at in the A of a with to a with and or the in a that is and of human is not the is is a of and an of law where in legal are to make a In in those legal where are to the of a legal to foreign decisions are to we look at foreign law in cases. in a and the that in the is at for that are very from in the in to the legal to to the the legal can is the law is with in can be by of legal from legal and a the be to with that a to foreign law judicial But it is have Dorsen: to to on the it this to Justice have a I'm the or is of foreign that on that are to of have the death U.S. constitutional decisions of on as the death on the of on the of the we that from the of the in of the is The to Justice Breyer is a of that Justice Scalia in it to and other of the Supreme Court to foreign even not that in general to that the are in of the death in of in of other I'm not sure as many to to American to it a that a that is in the foreign are by and those with it is a We have to opinions of Supreme But that opinions from other to our is it is important that we decisions of foreign are not have this general it for it is to to a when American and when of a foreign the natural of the legal the to make and decisions in this are a of their is the It sure The can be in is the at a to to But a in use or foreign in that the is not or not make a foreign it make the a or foreign materials that is not a is not have many for But are not a be the or in a that the The not in the in the of have the Dorsen: Justice be the for not using other foreign we the other countries In in the homosexual that the it that has homosexual it not as a of by of the Court of which was using the that we lawyers and and law and It had not been it was that it was to homosexual The did not the of the It was to the of the it in The of the was But the that the to foreign in is that the in its of had that homosexual is that its to that this was U.S. we not But look at the of the it to It to this have to of for have to that a have to a American opinion I'm two of the of the American in eighteen of the that have that it to the whether the is and whether that to have a by an in or and it in there and the it it to It to a which many in this and in the law The that most important in of cases. of had foreign law and to the We had the a opinion for the But the is that in the to other in other applied the in We had a very the of American where a in a for in by American and that took place for the most part the of the an American to We a by a from in the to the to the which us that it did not the the the to of the We a in which American the the United States of to the as could an We the legal of an had to from a from by in American It a very of of the We in the a years to with the of international law. are U.S. the could on when the on the other is a in the that is a of the United It on law. at that, most is that we in from foreign and other foreign In the for the of the and The not of the law in very This is It is a in which law can no those foreign law to a foreign law part of law or other law. The we that is that a the is the law is has a international the that lawyers and the the law of But lawyers not the law of where to look to the and can the foreign law as Dorsen: to that of to or it Dorsen: that Dorsen: the of The have is at foreign to for that our the United our a and in of the to in of the of the as a look at a and be not by the of the by the of the by the of the by the our look at and to opinions that are on the that be a of our in a the that it is to the to it is to the to the Constitution even it is not the even it be it it But even with and that be the the Constitution to But it to with the views of the American on constitutional not to with a or most of can have on and on the have to is American the the to that is not to a very of American and law to look at the that in by the American I'm sure that and can make very not the it not be to to make those Dorsen: Justice to on the to is a of to a of in the to an to that the law the of that to the The Court of that law the of by the of that not in was that it was to to the that not United is it for to be the Court with not by the Court But can not look at not be in to to the Court I'm not from cases. that and it in where we Dorsen: to is to a The justices have to Dorsen: be to A at American University's Washington College of Law, Kenneth on have We with Professor Michel Rosenfeld, president of the U.S. Association of Constitutional Law, which is a of this to to to Justice have a that for the of the of the American has very to or with foreign as an Justice Scalia to the Constitution when it was and other that not be it that the had the of or by law or law of the or Justice Scalia look to that foreign as an The in of those that with the of the American It to that there are have and there are have and Justice Scalia as as can the on or as not a constitutional American or it to Justice Scalia is had had on and of the was by there be or there be in that as well not well or not in to Justice the of the the to and are very with the in But not be as with the as in a In there is much in the United The to be much and institutions are could that there is not the of of the in there be in the United The the in using foreign materials that there is no that a human is a in can have to or to the of that other look to law. the of as an look at the of the which the subject to it to that the Constitution the to or the to look at the it look at years of it the of the for opinions it was to be the which the Constitution as a to American can not the of the Constitution to by judicial is by has been to American a other that, and the have no with that not the Constitution as the of by and it be a not to have on not the we in a and the the Supreme Court that The is and at a years that a where the of to the of not the of law with which was not for to an which the Association in an have to foreign law and is foreign law before us in cases. We have to foreign law to those the lawyers have to the important from the important there are and of foreign the lawyers to the and the that or is there to a of in to cases. that or is there to an of that a it not not there to there to the law. is we of us a that can be in general We look to a we we we we for the or that the legal and we to the of our the of the or that the But we not the to of of to place on The are of it is important not to of as a law student or even as a or or the are important the The is not of the are we have in the of from of the Constitution of the United States that the Constitution and the under it be the law of the and that and in be took Justice and when the is not to the United to the Constitution and the The Constitution and the that we and the Constitution as by a in or or I'm very as to that the Constitution of the United for a foreign in a had that a of in a had had an on to that to the American is is at in other a the Constitution of the United have in where and we are to from other that or or or or even Washington have we of from to a Constitution that of as of law. an did the of there of of the was and it is the of is an invitation for and lawyers and law to to be and foreign judges, not when to and the Constitution of the United It It we are not U.S. to the constitutional of foreign this is to a with which are the and have very for the are by U.S. or to a foreign which that been that could place under our of and can to foreign from their is American with by foreign for that be in the U.S. U.S. It is a We been with a it when the it it the for sure is that it I'm a are not in the of a that the of the is the of the Justice Scalia has this many The is the of the there is a very to Justice that the is the The which has of to It was much in the the in the The much until to which is a on as to a large the which that could from the United U.S. and the and of the U.S. can be of the United by the and to the of U.S. the we to the of other when was for the Constitut

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