American Legal Conservatives Oppose the Citation of Foreign Law, But What About the Hallowed Practice of Citing to Blackstone?

By STEVE SANDERS
Friday, Oct. 10, 2008

It is an article of faith among legal conservatives that American courts should not cite foreign sources of law. Foreign courts, these conservatives argue, just don't get it, and we don't need their cosmopolitan ideas corrupting the minds of our judges on subjects like homosexuality or the death penalty.

The debate over the use of foreign law had been mostly confined to law reviews and legal blogs. Recently, however, it spilled into the mainstream media with a New York Times article about the declining international influence of U.S. Supreme Court rulings. One reason for this sinking global esteem, according to the Times: our Justices' own disdain for the work of their foreign colleagues.

American legal conservatives remain unabashed. "It may be good in their nation," Northwestern law professor John O. McGinnis said of foreign law. "There is no reason to believe necessarily that it's good in our nation." The Times also quoted Justice Antonin Scalia's dissent in the juvenile death penalty case Roper v. Simmons, in which Justice Anthony M. Kennedy's majority opinion cited, among other things, the United Nations Convention on the Rights of the Child. "The basic premise of the court's argument - that American law should conform of the law of the rest of the world," Scalia thundered, "ought to be rejected out of hand."

Yet although Scalia and other Federalist Society types balk at the mere mention of the South African Constitution or the Canadian Supreme Court, there is one foreign source of law they embrace like a beloved old crony: William Blackstone, the English jurist who penned Commentaries on the Laws of England, a massive treatise on the common law published between 1765 and 1769. Is there a bit of hypocrisy going on here?

Blackstone's Powerful Continuing Influence

For example, the same Professor McGinnis who sniffed that foreign jurists don't know what's good for America has cited Blackstone more than a dozen times in law review articles - including in articles arguing against the use of international and foreign law! (And speaking of foreign jurists not understanding America, one wonders whether Professor McGinnis knows that Blackstone opposed repeal of the Stamp Act, which helped incite the American Revolution.)

Conservatives practically set their hair on fire when Kennedy cited the European Court of Human Rights in Lawrence v. Texas, which invalidated sodomy laws. Yet none of them seemed to complain when then-Chief Justice Warren Burger, concurring in Bowers v. Hardwick (the earlier sodomy case that Lawrence overruled), cited the foreigner Blackstone's fulminations against homosexuality as "a crime not fit to be named" and "a disgrace to human nature."

Indeed, from the grave, Blackstone continues to have an enormous impact on American law. For example, Chief Justice John Roberts has consulted his views on habeas corpus (in Munaf v. Geren) and acceptable levels of suffering for prisoners condemned to death (in Baze v. Rees). In Morse v. Frederick (a.k.a. the "Bong Hits 4 Jesus" case), in which the Court further eroded the First Amendment rights of high school students, Roberts cited Blackstone for the principle that parents delegate part of their authority to their children's schoolmasters. This was the same Chief Justice Roberts who, at his confirmation hearing, compared finding support from foreign law to "looking out over a crowd and picking out your friends."

It isn't hard for Roberts and Scalia to pick their friend Blackstone out of the crowd. He's the portly old bird in a powdered wig spouting such wisdom as "No enactment of man can be considered law unless it conforms to the law of God" and "The husband and wife are one, and that one is the husband."

Admittedly, Blackstone defies easy pigeonholing, and liberals can find much to admire in his writings as well. (The ACLU would cheer his maxim that it is "better that ten guilty persons escape than one innocent suffer"). Still, Blackstone finds more fans on the right than the left. He espoused the sanctity of private property and the principle that "the King can do no wrong." Jeremy Bentham, a later English jurist and philosopher, assailed Blackstone as an arch-conservative "enemy of reformation."

Is Legal Conservatives' Stance Hypocritical, Or Is Citing Blackstone Legitimate Because he Influenced the Framers?

Regardless of Blackstone's politics, aren't legal conservatives being a bit hypocritical when they scoff at the idea we could learn anything from modern-day foreign jurists, while at the same time consulting their well-thumbed copies of the Commentaries for the views of foreign jurists two-and-a-half centuries ago?

The answer is yes - and Scalia cheerfully admits it. "[T]he reality is I use foreign law more than anybody on the Court," he told an audience at American University in 2005. "But it's all old English law."

Conservatives justify this double standard because Blackstone, as the preeminent legal thinker of the Eighteenth Century, influenced our own framers. On this view, Blackstone was as important to our Constitution as James Madison or Alexander Hamilton. (Scalia has cited Madison - the Constitution's primary draftsman - less often than he cites the oracular Blackstone.)

But if Blackstone helped our framers grope their way through difficult issues of their time, why should American courts today refuse any help from their global peers as they reason their way through difficult issues of our time? Scalia and his fellow "originalists" have a response to that one as well: They maintain that the Constitution is a dead, not a living, document, and the only respectable methodology for interpreting it is to assume that its meaning has not changed since 1789.

One further irony here, however, is that Blackstone espoused certain ideas that give "strict constructionists" heartburn, such as the principle that law doesn't create rights, it protects pre-existing - and unenumerated - "natural" rights. Both the Ninth Amendment and the doctrine of substantive due process embody this idea. But most legal conservatives prefer to pretend that the Ninth Amendment doesn't exist, and they hiss with contempt at the mere mention of substantive due process .

Scalia told his American University audience in 2005 that he disliked either foreign or American courts ruling on issues like homosexuality because judges shouldn't decide "what's moral and what isn't." His problem with citing a European decision about sodomy laws, he said, was that "[i]t had not been done democratically."

But if our concern is for democratic decision-making, who in this country elected Blackstone? More to the point, who elected all the moth-eaten English judges dating back to medieval times whose attitudes Blackstone distilled?

Blackstone, Himself a Judicial Activist, Is an Odd Source for Legal Conservatives to Cite

This points up the crowning irony here: Because Blackstone was the ultimate expositor of the common law, he was also the ultimate judicial activist, and he thus helps judges do what legal conservatives usually condemn: substitute judicial preferences for the will of elected officials. Last term in District of Columbia v. Heller, which overruled a law representing the judgment of Washington, D.C.'s citizens and elected leaders that banning handguns was good public policy, Scalia's majority opinion invoked Blackstone like a mantra, mentioning the great man or editions of his work no fewer than nine times.

Fine. The Second Amendment is a knotty issue, and of course we should consult Blackstone to better understand our shared legal heritage. My point is simply that it is hubris to insist at the same time that American courts have now acquired a monopoly on sound legal reasoning and ability to interpret the constitutional traditions we share with other countries.

As the former chief justice of the Israeli Supreme Court recently wrote in the Harvard Law Review, the U.S. Supreme Court "is losing the central role it once had among courts in modern democracies." One wonders whether it bothers Scalia, Roberts, and their fellow travelers that as they look out over the international crowd, Blackstone is apparently one of the few friends they have left.


Steve Sanders is a Chicago-based appellate litigation attorney and commentator. He can be reached through his web site, www.stevesanders.net.

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