REMARKS BY SUPREME COURT JUSTICE ANTONIN SCALIA TO THE AMERICAN ENTERPRISE INSTITUTE
SUBJECT: OUTSOURCING AMERICAN LAW
LOCATION: AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, D.C.
TIME: 3:00 P.M. EST DATE: TUESDAY, FEBRUARY 21, 2006
(Federal News Service (Middle East) Via Thomson Dialog NewsEdge)
JUSTICE SCALIA: Thank you, Chris. I appreciate that
introduction, which was mercifully short. And I do indeed recall with
great fondness my years here at AEI. It was a wonderful time. There
were a lot of interesting people in residence -- Irving Kristol; Bob
Bork was here, Jude Wanniski. It was a wonderful stay as a resident
I'm talking today about the subject of the use of foreign law in
American judicial opinions. Most of what I will have to say is
unfavorable to the use of foreign law, so I feel I should begin by
pointing out that I am not a xenophobe. (Laughter.) I don't mind
foreign law. In fact, in my years as a law professor, I used to teach
foreign law. One of my subjects was comparative law. And I do indeed
believe that comparative law might well be made a mandatory subject in
United States law schools, because I believe that just as you do not
understand your own language until you've taken some foreign language
-- whether it be Latin or German or any other one -- so also I think
you don't understand your own legal system until you see how ordering
of the same matters could be done in a different way. The only way to
appreciate the distinctiveness of your system, what drives it, is to
examine some other system.
So over, I do not take the position that foreign law is never
relevant -- never ever relevant to American judicial opinions. It
some times is -- for example, in the interpretation of treaties. The
object of a treaty is to have nations agree on a particular course of
action. And if I'm interpreting a provision of the treaty that has
already been interpreted by several other signatories, I am inclined
to follow the interpretation taken by those other signatories so long
as it's within the realm of reasonableness. I mean, if they've taken
an absolutely unreasonable interpretation, of course I wouldn't follow
it, but where it's within the bounds of the ambiguity contained in the
text, I think it's a good practice to look to what other signatories
to the treaty have said. Otherwise, you're going to have a treaty
that's interpreted different ways by different countries, and that's
certainly not the object of the exercise.
I also think that foreign law is sometimes relevant to the
meaning of an American statute. For example, if the statute is
designed to implement a treaty provision, the interpretation of that
treaty provision by foreign courts is relevant to what the treaty
means and hence relevant to what the provision of the American statute
implementing the treaty means.
In other cases, over, the issue that arises under the statute
depends upon foreign law. We had a case a few terms ago that involved
the question whether under a United States statute a corporation
organization in the British Virgin Island was a, quote, "citizen or
subject of a foreign state." That was the American statute. Well, I
couldn't decide that question without consulting British law as to
whether a corporation in the British Virgin Islands was a citizen or
subject of Britain.
Another example of the same phenomenon: the Foreign Sovereign
Immunities Act permits suit against foreign sovereigns for property,
quote, "taken in violation of international law." Well, we had a case
a few terms ago involving, you know, the seizure of some valuable
paintings by the Nazis. Well, obviously, whether the person who was
seeking to have the paintings restored was entitled to that or not
depended upon whether that person owned the paintings. And that
question was a question of Austrian law, so we obviously had to
consult Austrian law for that purpose.
And finally, I think foreign law can also profitably be discussed
in the opinions of United States courts where it is consulted in
response to the argument made that if you interpret the statute this
way or if you interpret the Constitution this way, the skies will fall
-- okay -- you know, predictions of disaster if you adopt a certain
interpretation. Well, you can look to foreign law and say, well, gee,
they did this in Germany and the skies didn't fall. That's certainly
a very valid use of foreign law.
But those are not really the issues that I think people are
concerned about. I think people are concerned, principally, about the
use of foreign law in the interpretation of the United States
Constitution. And even there, I have to tell you, I cannot say it is
never relevant. To tell you the truth, I probably think it is
relevant often than most people on the Supreme Court. Of course,
the foreign law I think is relevant is very old foreign law --
(laughter) -- very old English law, because what is meant by the terms
of the Federal Constitution depended upon what, you know, what
Englishmen in 1791 considered due process of law, what they considered
to be cruel and unusual punishments and so forth. So I use foreign
law all the time, but it is all very old English law.
What about modern foreign legal materials? Well, that is where I
get off the boat. It is my view that foreign legal materials can
never be relevant to an interpretation of -- to the meaning of the
United States Constitution. Sometimes the Supreme Court seems to have
agreed with this view. For example, in a 1997 case called Printz
versus United States, a case deciding whether the federal government
could press state law officers into services to administer a federal
statute, the statute provided that state sheriffs would have to do
some paperwork for the implementation of the federal law. The court
rejected as irrelevant Justice Breyer's assertion that Switzerland,
Germany and the European Union all provide that the constituent states
must themselves implement many of the laws enacted by the central
federation. The court's opinion rejected that, that citation of
foreign law, saying the following, quote: "We think such comparative
analysis inappropriate to the task of interpreting a constitution,
though it was, of course, quite relevant to the task of writing one."
In other cases, however -- in many other cases -- opinions for
the court have used foreign law for the purpose of interpreting the
Constitution. The first such case I'm familiar with was in 1958 -- a
case involving the Eighth Amendment -- that is, the cruel and unusual
punishments clause. In Trop versus Dulles, the court held that the
Eighth Amendment forbids the penalty of forfeiture of citizens
because, interalia, quote, "The civilized nations of the world are in
virtual unanimity that statelessness is not to be imposed as
punishment for crime," close quote.
Reliance upon foreign law has been made with increasing frequency
in Eighth Amendment cases. In Coker versus Georgia, a 1977 case, the
court noted that, quote, "Out of 60 major nations in the world
surveyed in 1965, only three retained the death penalty for rape where
death did not ensue." In Endmund versus Florida, a 1982 case, the
court observed that, quote, "The doctrine of felony murder has been"
-- that's murder in the course; any murder that occurred in the course
of a felony was made a capital crime under the laws of many states.
The court observed that, "The Doctrine of felony murder has been
abolished in England and India, severely restricted in Canada and a
number of Commonwealth countries, and is unknown in continental
Europe," close quote.
In a 1988 case, Thompson versus Oklahoma, the court noted that,
quote, "Other nations that share our Anglo-American heritage and the
leading members of the Western Europe community," close quote, oppose
the death penalty for a person less than 16 years old at the time of
I must interject that almost all of those countries also opposed
the death penalty when a person was than 16 years old at the time
of the offense -- (laughter) -- but never mind.
And in Atkins versus Virginia, decided in 2002, the court thought
it relevant that, quote, "Within the world community, the imposition
of the death penalty for crimes committed by mentally retarded
offenders is overwhelmingly disapproved," close quote. And that was
relevant to the court's interpretation of our Eighth Amendment.
Recently, the court has expanded the use of foreign law beyond
the area of the Eighth Amendment. In Lawrence versus Texas, decided
in 2003, the court relied upon action of the British Parliament and a
decision of the European Court of Human Rights in declaring that laws
punishing homosexual conduct were unconstitutional under the American
And of course, individual justices have urged the relevance of
foreign law in other cases as well.
I expect, or rather I fear, that the court's use of foreign law
in the interpretation of the Constitution will continue at an
accelerating pace. And I think so for three reasons: first, because
the living constitution paradigm for the task of constitutional
interpretation prevails on the court and, indeed, in the legal
community generally. Under this living constitution view, it is the
task of the court to make sure that the current Constitution comports
with -- as we have put the point in the Eighth Amendment context --
quote, "The evolving standards of decency that mark the progress of a
maturing society," close quote.
Thus, a constitutional right to abortion, which assuredly did not
exist during the first few centuries of our countries existence, does
exist today. Likewise, a constitutional right to homosexual conduct.
Of course, I disagree with this living constitution approach, but that
is not my purpose here to debate originalism. Rather, my point is
that once you assume the power to revise what the Constitution
requires in order to keep it up to date -- once you assume that power
-- then the criticism voiced by the court in prints, which I quoted
earlier -- namely that comparative analysis is inappropriate to the
task of interpreting a constitution, though it was, of course, quite
relevant to the task of writing one -- that criticism no longer has
You are engaged in the process of writing a constitution and
there is no reason whatever not to consult foreign materials in doing
it. I suppose it could be argued that you can be a living
constitutionalist who wants to create only a new American Constitution
-- you know, sort of a living constitutionalist who doesn't care what
foreign countries think but wants to update the American Constitution
according to the likes of Americans. Well, that's certainly a
possible position. It is not, however, one that I think is likely to
prevail because I do not think very many living constitutionalists are
likely to be what you might call chauvinistic living
constitutionalists -- that is, dedicated to effecting only those
changes in the Constitution that the American people desire. The
American people can make their will well enough known by creating new
rights legislatively through the federal and state legislatures or, in
the last analysis, by amending the Constitution in the democratic
method that the Constitution contains.
One who believes that it falls to the courts to update the list
of rights guaranteed by the Constitution tends to be one who believes
in a platonic right and wrong in these matters, which wise judges are
able to discern when the people at large cannot.
In fact, it has occurred to me that this notion of an overarching
moral law that is binding upon all of the nations of the world and
that all the judges of all the nations of the world are charged with
interpreting has replaced the common law. Those of you who are
lawyers remember that in the bad old days -- that is to say, before
Erie Railroad versus Thompkins in, what, 1947 -- the courts believed
that the there was a single common law. It was up there in the
stratosphere. Now, you know, the state courts of California said it
meant one thing. The state courts of New York said it meant something
else, and the federal courts might say it meant a third thing. But
one of them was wrong because there really is a common law and it's
our job to figure out what it really is. And so in those days, any
common law decision in one state would readily cite common law
decisions of other states, because all of the judges were engaged in
the enterprise of figuring out the meaning of what Holmes called the
-- what was his phrase -- the brooding omnipresence in the sky that
was the common law.
Well, I think we've replaced that with the law of human rights,
which is a moral law. And surely there must be a right and wrong
answer to these moral questions -- whether there's a right to
abortion, whether there's a right to homosexual conduct, what
constitutes -- (inaudible) -- and so forth. Surely there is a right
and wrong moral answer, and I believe there is. The only thing is,
I'm not sure what that right answer is -- or I am for myself, but I'm
not sure it's the same as what you think.
And the notion that all the judges in the world can contemplate
this brooding omnipresence of moral law, cite one another's opinions
and that somehow they are qualified by their appointment to decide
these very difficult moral questions is quite surprising to me. But I
am sure that that is where we are, that there really is a brotherhood
of the judiciary who indeed believe that it is our function as judges
throughout the world to determine the proper meaning of human rights.
And what the brothers in -- and sisters -- in one country say is quite
relevant to what the brothers and sisters in another country say, and
that's why I think if you are a living constitutionalist, you are
almost certainly an international living constitutionalist.
The second reason foreign law is likely to be used increasingly
in our living constitution decisions is Sir Edmund Hillary's reason --
because it's there. Let's face it, it's pretty hard to put together a
respectable number of pages setting forth, as a legal opinion is
supposed to do, analytic reasons for newly imposed constitutional
prescriptions or prohibitions that do not at all rest -- as the
original Bill of Rights did -- not at all rest upon logic or analysis
but rather upon one's moral sentiments, one's view of natural law,
one's philosophy or one's religion.
How to explain logically and analytically why government
limitation of sexual freedom by rendering bigamy or adultery or incest
a crime is perfectly constitutional, while its limitation of sexual
freedom by making homosexual relations a crime is not? Decisions on
such matters -- whether taken democratically by society or
undemocratically by courts -- have nothing to do with logic or
analysis. And so, without something concrete to rely on, judicial
opinions will be driven to such philosophic or poetic explanations as
appeared in one of our opinions: at the heart of liberty is the right
to define one's own concept of existence of meaning of the universe
and of the mystery of human life. Surely not a happy state of affairs
for a law court.
It will seem much like a real legal opinion of one can cite
authority to support the philosophic, moral or religious conclusions
pronounced. And foreign authority can serve that purpose. You can
cite the name of the case, and it has letters and numbers after it --
33 Uganda Law reports, whatever -- (laughter) -- and it look very
The third reason foreign law will be increasingly used is an
intensely pragmatic one. Adding foreign law to the box of available
legal tools is enormously attractive to judges because it vastly
increases the scope of their discretion. In that regard, it is much
like legislative history, which ordinarily contains something for
everybody and can be used or not used, used in one part or in another,
deemed controlling or pronounced inconclusive, depending upon the
result the court wishes to reach.
Consider: in Lawrence, the court cited European law to strike
down sodomy laws. But of course, Europe is not representative of the
whole world. Zero out of 50 countries in Europe prohibit sodomy --
not necessarily, by the way, because of the democratic preferences of
those 50 countries but because of the uniformity imposed by the
European Court of Human Rights. But 33 out of 51 countries in Africa
prohibit it; eight out of 45 countries in the Americas; 27 out of 47
Asian Pacific countries and 11 out of 14 countries in the Middle East.
Thus, the rest of the world aside from Europe is about evenly split on
The court's reliance on foreign sources has also been selective
as to when foreign law is consulted at all -- not only which foreign
law you consult, but whether you consult it. For example, although
the United States was in the minority in allowing states to prohibit
sodomy, it was not in the minority in allowing states to restrict
abortion. According to the United Nations, the United States is now
one of only 53 countries classified as allowing abortion on demand
versus 139 countries allowing it only under particular circumstances
or not at all.
Among those countries the U.N. classified in 2001 as not allowing
abortion on demand were the United Kingdom, Finland, Iceland, India,
Ireland, Japan, Luxembourg, Mexico, New Zealand, Portugal, Spain,
Switzerland and virtually all of South America. But the court has
generally ignored foreign law in its abortion cases. Casey does not
mention it at all. Roe discusses only modern British law, which in
any event, is restrictive than what Roe held. I will become a
believer in the ingenuousness -- though never in the propriety -- of
the court's new-found respect for the wisdom of foreign minds when it
applies that wisdom in the abortion cases.
I hope I have made it clear that my belief that use of foreign
law in our constitutional decisions is the wave of the future does not
at all suggest that I think it's a good idea. I do not. The men who
founded our republic did not aspire to emulate Europeans, much less
the rest of the world. I wrote an opinion for the court a few terms
back overruling an earlier case which had held that the confrontation
clause is satisfied so long as the unconfronted testimony -- that is
to hearsay testimony -- has, quote, "particularized guarantees of
The opinion pointed out that the confrontation clause was
designed precisely to prevent a procedure considered trustworthy by
continental European nations and others that follow the civil law
tradition. Quote: "Examinations of witnesses upon interrogatories,"
close quote, wrote John Adams, are only by the civil law.
Interrogatories are unknown in common law and Englishmen and common
lawyers have an aversion to them, if not an abhorrence of them.
As recently as 1993, France was still defending its use of ex
parte testimony before the European Court of Human Rights, arguing
that the defendant's accusers in a drug trafficking case had a, quote,
"legitimate interest in remaining anonymous," close quote, and that
the defendant's rights were adequately protected so long as, quote,
"the judge held hearings which enabled him to satisfy himself," close
quote, that the witnesses stood by their statements.
Should we have loosened up our confrontation clause in light of
foreign opinion on this subject? France permits suits against the
executive branch only in an executive branch court called the Conseil
d'Etat, whose members are appointed and promoted by the executive and
who regularly alternate between performing executive functions and
adjudicating the lawfulness of other people's performance of executive
Other European countries have somewhat similar systems, though
the extent of their participating in executive functions may be
limited. This is a practice that Tocqueville contrasted unfavorably
with our own as long ago as 1835. Should we change our mind? In
number 46 of the Federalist, James Madison speaks contemptuously of
the governments of Europe which are, quote, "afraid to trust the
people with arms," closed quote. Should we revise the Second
Amendment because of what these other countries think?
In November 2002, the Council of Europe approved what was called,
quote, "An additional protocol to the Convention on Cyber Crime,"
which would make it illegal to distribute anything on line which,
quote, "advocates, promotes or incites hatred or discriminations,"
closed quote. A spokesman for the United States Department of Justice
said, quite correctly, that this country could not be a party to such
a treaty because of the First Amendment.
If all of Europe thinks that such a provision does not unduly
limit speech, should we reconsider? And I could go on.
If there was any thought absolutely foreign to the founders' of
our country, surely it was the notion that we Americans should be
governed the way Europeans are, and nothing has changed. I daresay
that few of us here would want our life or liberty subject to the
disposition of French or Italian criminal justice, not because those
systems are unjust but because we think ours is better.
What reason is there to believe that other dispositions of a
foreign country are so obviously suitable to the morals and manners of
our people that they can be judicially imposed through constitutional
adjudication? And is it really an appropriate function of judges to
say which are and which aren't? I think not.
Thank you. (Applause.)
MODERATOR: Justice Scalia, thank you for a very deep and
The justice will take questions. If you could please wait for
the roving microphone and introduce yourself briefly before your
question. Thank you.
JUSTICE SCALIA: Yes, start right in front here, and you can pass
the mike back.
Q Thank you, Justice Scalia. Bill Dodge, Hastings College of
the Law. I know that you know that the framers believed there was a
brooding omnipresence in the sky. It was called natural law. It lay
behind the general common law and the law of nations. By saying that
that is no longer valid as a source of law after Erie, aren't you
being anti-originalist or, worse yet, a living constitutionalist?
JUSTICE SCALIA: Oh, you really know how to hurt a fellow.
I did not deny the existence of natural law. I believe in
natural law. I think I said that during my talk. The only thing is,
my conception of it is different from yours. The issue here is not
whether the natural law exists. The issue is whether the perception
of it is to be the perception adopted by the people democratically.
I think the people have a responsibility to adhere to the natural
law in the laws that they enact. The issue is whether it was supposed
to be left up to nine lawyers to figure out for the whole country what
the natural law is. And I don't think there's anything in the mind of
the framers that would suggest that. So it isn't a fight of natural
law people versus non-natural law people; it's a question of who it is
in a democratic society that is supposed to mirror the natural law in
the statutes of the country.
Yes, just pass it back.
Q Hi, I'm Aaron Ewell (sp). You know, the great Anton (sic)
Scalia has --
JUSTICE SCALIA: Antonin.
JUSTICE SCALIA: Thank you.
Q -- has pleased us with his great sophisticated way of
talking. And I see that as the nation is starting to fall apart and
as Dick Cheney runs on the hunts --
JUSTICE SCALIA: Do you have a question, apart from insults? Do
you have a question?
Q Plato has a question for you. Persimicus said, justice is
the right of the stronger, which seems to be what the federalist
society has deemed correct, what Carl Schmitt deems correct --
JUSTICE SCALIA: Do you have a question, sir? If not, please
give the microphone to someone who does.
Q And I see now that Alito has now become another Supreme
Court justice. You have several --
MR. : Do you have a question? Ask a question or give the
mike to somebody else.
Q Well, I do have a question.
JUSTICE SCALIA: Which is?
Q That what you're seeing now --
JUSTICE SCALIA: Questions don't begin with "that."
Q What do questions begin with?
JUSTICE SCALIA: Not with "that."
Q Because I do have a question.
JUSTICE SCALIA: Please sit down, sir.
Q I was wondering --
MS. : Sir, please. Please. Come on.
JUSTICE SCALIA: You don't have --
Q I have a question. Do you support the Carl Schmitt's
doctrine of the unitarian --
JUSTICE SCALIA: I have no idea. It's not germane to the subject
of my talk, if it didn't occur to you.
Q Well, it is foreign law.
MODERATOR: Yes, sir?
JUSTICE SCALIA: It's not foreign law. It's a foreign scholar.
Q Hi, I'm Ed Hammler (sp). You can address it anyway you
want. I sort of wanted to take the opportunity to bring up something
that sort of implies foreign implications in terms of the situation
right now -- that is, I think there's been somewhat of a breach of the
executive powers in a certain way right now involving his ability to
really enact law based on the war on terror, just some of the stuff we
were discussing earlier. And I was wondering if, you know, the vice
president saying that he has the ability to declassify documents and
other things would impede on that ability for the executive to, you
know, enact law based on the subject of the war on terror? I mean, to
me it's sort of like saying --
JUSTICE SCALIA: Sir, I do not think that has anything to do with
the use of foreign law in the opinions of United States courts. And
for that reason, I choose not to answer the question.
Q It's the war on terror. I just figured, we were talking
about Islam and things like that.
JUSTICE SCALIA: Well, I'm sorry. I don't think it's relevant,
and I'm the one answering the questions. (Laughter).
Q I was wondering if your prediction would change if you got
a fifth vote on the court to instruct American courts not to apply
foreign law in those rare instances where you think it -- and I
certainly agree it is erroneous.
I count by their confirmation testimonies maybe two others who are
sympathetic and one other of your colleagues who may also -- who seems
already, to me, to be sympathetic. If you were to get a fifth vote,
would such instructions from your court make a difference? Thank you.
JUSTICE SCALIA: Well -- (laughs) -- I assume if my court said
that the lower courts should not use foreign law in their opinions, I
assume the lower courts would observe that -- if they are supposed to
use the basis for decisions that the Supreme Court uses. But I'm not
going to make any prediction, you know, as to -- the overwhelming
majority of judges currently sitting in all courts are constitutional
evolutionists and the only colleague of mine that I know who does not
believe in an evolving Constitution is Justice Thomas. So the rest of
you will have to await the event.
JUSTICE SCALIA: Yes. Let's get somebody way in the back. Are
all the bad guys up front and the good guys are in the back?
Q That's how I view it. Brian McKerry (sp) from the
University of New South Wales in Sydney, Australia. I just want to
know where you draw the line, sir, on what foreign law is acceptable
and what isn't. It seems from the beginning -- I mean, you
acknowledge that some foreign law is acceptable. Do you draw the line
with constitutional cases -- you personally, not the court -- with
constitutional cases or with Eighth Amendment cases, or what?
JUSTICE SCALIA: Well, as I say, with constitutional cases I
think it's never relevant. If you're an originalist, you wouldn't be.
And with statutory cases, I think it's never relevant for purposes of
determining -- except in the few instances that I mentioned in my
talk. You know, if a federal law uses a certain phrase, what that
phrase was intended to mean by the United States Congress is not
necessarily what the same phrase would be interpreted to mean by your
Now, I suppose I don't mind citing an Australian opinion to
establish the proposition that the phrase could mean a certain thing.
But you know, you can cite a dictionary for that. I'm talking about
using it as authoritative, as showing that since the Australians think
it means that, why, the federal statute must mean that. I don't think
I'd use it there.
The young lady in the middle there.
Q Hello. I'm Cecelia (sp). And we were --
JUSTICE SCALIA: You're from California, aren't you?
Q I lived there for a bit.
JUSTICE SCALIA: See. I knew it.
Q But we were discussing during the panel -- someone brought
up that nations always do what's in their best interests. So, using
the Treaty of Westphalia as the basis for this idea of nation's best
interest is at the benefit of the other, what benefit do you think the
United States would get from adoption a perpetual war doctrine in the
Middle East? Seeing as how Dick Cheney has got such bad aim, he'll
probably -- (laughter).
JUSTICE SCALIA: Yes, that's another question that I think is
irrelevant and therefore will not answer. It's irrelevant to the use
of foreign law by American courts, which is what I chose to talk about
and what I am perfectly willing to answer questions about.
Q It has foreign implications.
JUSTICE SCALIA: Everything has foreign implications --
Over there, please.
Q I've been having some legal trouble lately and I've been
wondering if you could recommend a good quail. (Laughter.)
Actually, I was wondering if you could talk a little bit about
your philosophy a little bit. I mean, when you were talking about the
founding fathers -- and I was wondering, why would they propose the
idea of natural law? They didn't think there was any way of
discovering what that was? I mean in the course of a dialogue that
you were talking about earlier --
JUSTICE SCALIA: Where did they propose natural law? What
provision of the Constitution are you referring to?
Q Well, I'm just talking about in the general philosophy.
JUSTICE SCALIA: In the general philosophy they believed in
natural law. So what? Did they ever say anywhere that natural law
shall be the law that governs the United States of America?
Q You yourself were talking about natural law.
JUSTICE SCALIA: I said that they believed in it, as I believe in
it. And I think a society is -- a democratic society has an
obligation to try to conform its laws to the natural law. But that's
a matter for the citizens who either personally vote for the laws or
enact -- or vote for representatives who enact the laws.
JUSTICE SCALIA: Please, sir. You've had your chance and this is
not an open forum.
Q You never answered my question.
JUSTICE SCALIA: You never had a question.
Yes, over there.
Q Mr. Scalia, I'm actually curious whether you saw a
distinction between international versus foreign law? You suggested
that you thought comparative law was very useful perhaps in some
circumstances, but is there at least an argument out there
international law is different? I mean, international law being
treaties and that the Constitution should be interpreted in light of
that. I'm not sure if I subscribe to that myself. But I was
wondering, when you talk about foreign law, do you mean both
international law as well as the domestic law of foreign countries?
JUSTICE SCALIA: Yes, I do, except that international law to
which we have subscribed. I mean, if it's a treaty to which we have
subscribed, yes, that treaty is relevant to my decisions, of course;
but not international law of other international organizations that we
have not agreed to be bound by.
Q Mr. Justice, I'm Tom Goldstein. There are --
JUSTICE SCALIA: I remember you. (Laughs.) Mr. Goldstein has
argued some cases before my court.
Q Thank you for being so patient with their questions and for
coming out and doing talks like this. I know everyone really does
very much appreciate your doing that.
There are provisions of the Constitution, of course, that set
sort of minimum levels of rationality, and the 14th Amendment doctrine
says, look, if this is just totally crazy, it's irrational, it's
unconstitutional. I wonder what you thought of looking to the
experience of other countries that have confronted similar problems
and said, look, in our experience a prohibition on this just reflects
irrational discrimination and hatred so you could decide that the
foreign court was kind of confronting the same question you were.
JUSTICE SCALIA: No, I don't think there's much difference
between a foreign court saying it's stupid and a foreign court saying
that it's really stupid. I mean, I don't care what their view of it
is. My people have their own view and I should make my determination
on the basis of the traditions and the history and the text adopted by
the American people.
Q You were talking about our people -- you just said just
that. And what does that have to do with the general welfare of the
people among the world?
JUSTICE SCALIA: I don't do the world. I do the United States.
(Applause.) I am a federal judge operating under a Constitution that
begins, "We the People of the United States." Those are the people I
was talking about.
Q (Off mike.)
JUSTICE SCALIA: Sir, I'm not going to debate with you. I
answered your question. Thank you.
Q (Off mike) -- promote the general welfare.
JUSTICE SCALIA: Can you -- somebody?
Q (Off mike.)
Q Thank you, Mr. Justice. My name is Lou Gangen (sp).
My question is in regard to strict interpretation of the
Constitution as it relates to the issue of applying international law
before the Supreme Court. After all of these decades of what some
would call activism of the Supreme Court accepting the Constitution as
an evolving document, interpreting it in new ways, as a practical
matter, would there be consequences with moving entirely to strict
construction? Or is there a need for moderation? Or would you say
that -- or would you say the country would essentially be in better
legal hands if the court were to move entirely to strict construction?
JUSTICE SCALIA: Yeah, well, number one: I believe in moderation
and I don't believe in strict construction. I am not a strict
constructionist. I'm sorry to tell you that. I believe legal texts
should be interpreted neither strictly nor loosely. They should be
interpreted reasonably. And the example I often use is that if you
really are serious about being a strict constructionist, you would say
that the First Amendment would not be offended by Congress' censoring
handwritten mail, because the First Amendment only says, you know, it
guarantees freedom of speech and of the press. And a handwritten
letter is neither speech nor press, if you want to be strict about.
But of course, the First Amendment has always been understood as
protecting freedom of expression. And I think that's a reasonable
interpretation of it, and that's the interpretation I apply; which is
why, you know, I was the fifth vote in the flag burning case, which
said this was an expression of contempt -- just one way of expressing
it and you can't have a law against an expression of contempt.
Now as to what would be the severe results of going over to a
system of abandoning the living constitution, I mean, you know, I do
believe in the doctrine of stare decisis, which means, for anybody who
has any judicial philosophy, that you're willing to tolerate what's
been around a long time and everybody's gotten used to. You can't rip
everything apart and reinvent the wheel every five years.
Thus, most of the decisions that have been rendered under an
evolutionary construction I would leave in place -- not all of them,
but most of them. For example, perhaps the most -- the biggest
strength that the court has made was interpreting the Fourteenth
Amendment to apply the Bill of Rights to the states. Nobody every
thought the Bill of Rights applied to the states. It begins,
"Congress shall make no law." And when I was in law school, it was
still a controversial proposition whether the 14th Amendment
incorporated the Bill of Rights and spat them out upon the states.
But you know, we've been doing this for 50 years now. It's not a
problem. I just take the same rules that I apply to the Bill of
Rights against the federal government and I apply it against the
states. It is manageable. The people have gotten used to it and I am
not about to tell the people of New York State or of any state that
their state government is not bound by the First Amendment. Okay? So
stare decisis saves you from those wrenching departures that would
make it impossible to go back to a correct interpretation of the
Q Michael Greeven (sp) of American Enterprise Institute.
Justice Scalia, my question is, the biggest supporters of
international law in the cases where you don't like it are also the
biggest opponents of using international law in the cases where you
would use it. So for example, when it comes to interpreting the
Warsaw Convention -- thank you very much, we don't care what
Australian law or what Australian courts have to say about it; when it
comes to deciding whether the European Union's antitrust authority are
actually a tribunal or not, and the Europeans tell us they're not,
well, we have a better opinion of the matter.
Would you care to speculate why that inversion -- why your
opponents -- I mean the international law aficionados' enthusiasm for
international law wanes precisely in treaty cases and in cases where
you think it's appropriate to use?
JUSTICE SCALIA: I'm not sure it breaks out quite as cleanly as
you suggest. I'm not sure about the case of whether the European
Commission is a tribunal or not. I mean, surely it depends on whether
it's a tribunal within the meaning of American law. And I'm doggoned
if I'm going to let the European Commission tell me whether they're a
tribunal under a American law. They can be a tribunal under European
law. That's fine. So no, I don't think there's any correlation.
The young man over here. Two , I think. I have another
Q (Off mike) -- I wanted to iterate what that gentleman over
there said. Seeing your agility today with these aforesaid bad people
is quite humbling. I just want to ask you one question, though, on
this idea of moral relativism. And that is, how, when you're
combating such bad people, do you argue for moral relativism without
citing such obvious anti-American sources like John Locke or -- (off
JUSTICE SCALIA: Gee, I don't take your attribution of agility to
be a compliment. And I certainly have never endorsed moral
relativism. To the contrary, I have said that I believe in natural
law. I'm not a moral relativist at all. I don't say it's entirely
subjective. I do believe there is a right and a wrong. The trouble
is, my perception of it is not the same as yours, and therefore, I
have no right to --
Q (Off mike) -- moral relativism.
JUSTICE SCALIA: No it isn't. No it isn't. I think there's a
right and a wrong answer. And I would say my perception of the moral
law is right and yours is wrong. (Light applause.) All I'm saying is
that our perceptions are different. Yours happens to be wrong. That
doesn't make me a moral relativist.
Next question. Yes, this young woman here.
Q Can I be a young woman?
JUSTICE SCALIA: Okay, yes, you be a young woman. You are a
young woman. I'm sorry.
Q I'm a grandmother.
JUSTICE SCALIA: (Laughs.)
Q Anyway, Justice Scalia, I had the pleasure of having
several cases in front of you in the D.C. Circuit and that was a great
JUSTICE SCALIA: Long time ago.
Q Thank you. That's why I'm a young woman. Anyway, I was
just going to ask a very practical question. When I go -- I do a lot
of my research over at George Mason Law Library. And when I go over
there, if I was going to research -- you know, First Amendment, Fifth
Amendment, whichever kind of case -- to look up old English, the kind
of old English that you rely on, what would I look up? What types of
documents or sources would be useful for me to review?
JUSTICE SCALIA: Oh, well, there are concordances of the
Constitution that will tell you where the various phrases in the
Constitution come from and they will generally lead you into the cases
that -- that's the best I can do for a quick research job. I mean,
there are obviously books on various subjects. But there are
concordances. That's where I'd probably start.
Last question. This young -- the other young woman here. Right.
Q My name is Marina Shatsi (sp). I live and I work in
Germany where I do political work to -- so that I help establish a
true alliance between the German government and then the real United
States, because we need to have a change in, you know, political
direction, what's going on right now.
So my question is, in order to figure out if -- (off mike) -- why
do you think that Benjamin Franklin adopted Godfrey Leitnitze's (sp)
notion of the inalienable rights of man as being the, you know,
freedom, equality --
JUSTICE SCALIA: I'm sorry, ma'am. Let's try another last
question. That does not relate to the use of foreign law in United
States opinions --
Q It does.
JUSTICE SCALIA: -- and I therefore will not answer it.
Do we have a last question that relates to the use of foreign law
in United States opinions? I don't insist upon friendly questions. I
only insist upon questions that deal with the use of foreign law in
the United States court opinions.
Q Okay, I do have a question related to foreign sources of
law -- it's not entirely a friendly question, but do you -- I take it
you must perceive as qualitatively different to be of a problem
to be looking to foreign sources of law and citing them in legal
opinions. Because I'm thinking, the deeper -- in the cases you cite,
no one was saying the foreign law was actually controlling. And if we
just had agreed that foreign sources of law could not be cited --
JUSTICE SCALIA: I disagree with you right there.
JUSTICE SCALIA: When you say not controlling, they are cited
because they are relevant. That is, they are cited because since that
court said it is so, it is likely that it is so. They're not
cited just for fun. They're cited because they are supposedly relevant
to the court's analysis. Since the German court thought this, it's
probably right under American law.
Q (Off mike) -- reference to foreign experience as perhaps
having done foreign judgement --
JUSTICE SCALIA: Oh, I told you that. If somebody comes up and
says, if you interpret the First Amendment this way, it'll be
terrible. And then you come in and say, well, the Europeans have done
it and the sky hasn't fallen.
Q My question is, if we say, okay, let's not cite foreign
sources of law, but (I was thinking ?) the deeper problem is sort of a
European-Cambridge-Berkeley mind set about what the appropriate
direction of law is, if they never mention foreign sources but talk
Gworkan (sp) and Rawls (sp) and what have you, would the outcome be
any different? Does it really have an independent impact on the
development of law to be naming a foreign source?
JUSTICE SCALIA: Oh, I don't think that -- it is the European
tradition to cite scholars as authority. By and large, we would not
say that the First Amendment means something because Gworkin (sp) says
it means something. I think that would be a very strange -- a very
strange opinion of the Supreme Court. Whereas, we do say it means
something because the Europeans think that that's what freedom of
speech entails, or whatever.
Well, I have for the most part enjoyed being with you.
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