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Leading by Opposition: Justice Scalia and Comparative Constitutional Law

Claudia E. Haupt, Columbia Law School

As tributes to Justice Antonin Scalia are pouring in, a common theme is emerging among those of us who tended to disagree with him in most cases: he made us think harder. As Jamal Greene, himself a scholar of comparative constitutional law, remarked: “What he did was change how we talk about the law.” And so it was with comparative constitutional law.

It’s no secret that Justice Scalia was no fan of turning to contemporary non-U.S. law in judicial decisions. His opposition to the approach, however, contributed to more rigorous defenses by proponents, and thus arguably helped move the field of comparative constitutional law forward. So let’s revisit some of Justice Scalia’s greatest comparative constitutional law hits.

In the 1997 case Printz v. United States, Justice Scalia, who authored the majority opinion, squared off with Justice Stephen Breyer. At issue was the constitutionality of the Brady Handgun Violence Prevention Act, which would have demanded that background checks on prospective buyers of handguns be performed by state and local law enforcement officers to enforce the federal scheme. But the Court held that states cannot be forced to administer such a federal program. In his dissent, Justice Breyer cited Germany, Switzerland, and the European Union as federal systems in which states “themselves implement many of the laws, rules, regulations, or decrees enacted by the central ‘federal’ body.” Justice Scalia, however, found comparative analysis “inappropriate to the task of interpreting a constitution.” But, citing the discussion of federal systems in Nos. 18-20 of The Federalist, he also asserted that “it was of course quite relevant to the task of writing one.”

Three cases in the early 2000s brought the disagreement over comparative constitutional law to new levels of intensity: Atkins v. Virginia, Lawrence v. Texas, and Roper v. Simmons.

In Atkins, a case holding the death penalty for crimes committed by mentally retarded offenders to violate the Eighth Amendment, Justice John Paul Stevens, writing for the Court, referenced foreign law in a footnote. Following the finding of a national consensus against the death penalty in such cases, the footnote states in part: “Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” Importantly, the footnote itself states that “these factors are by no means dispositive.” Nonetheless, Justice Scalia would have none of it. After disputing the national consensus, and disputing the importance of findings of professional and religious groups, he criticized the reference to the world community in the footnote as follows: “Equally irrelevant are the practices of the ‘world community,’ whose notions of justice are (thankfully) not always those of our people.”

In Lawrence, the landmark gay rights decision striking down a Texas law criminalizing homosexual conduct, Justice Anthony Kennedy made comparative references in the majority opinion. Here, too, Justice Scalia voiced his opposition, noting not only that the references to foreign law constituted “meaningless dicta,” but, in fact, “[d]angerous dicta.”

And in Roper, Justice Kennedy and Justice Scalia again clashed on the question of including comparative constitutional law. The decision held unconstitutional a law imposing the death penalty on offenders under the age of 18 at the time the crime was committed. The final part of the majority opinion turned to comparative insights, noting that “the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Earlier decisions, too, the majority argued, had taken such insights into account: “This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet . . . the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’” Perhaps anticipating criticism for doing so, Justice Kennedy included a defense of looking to non-U.S. law in the final sections of the opinion, asserting that “[i]t is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. . . . It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”

But Justice Scalia remained unconvinced, dedicating Part III of his dissent to the use of foreign law in the majority opinion and beyond. One of his key critiques was that the Court only turned to foreign law when it served its purposes. But when they do not support the outcome—including in the areas of exclusionary rule, religion clause, and abortion jurisprudence—foreign materials are ignored. Within that discussion, he asserted: “The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”

Notably, although Justice Sandra Day O’Connor agreed with Justice Scalia on the outcome in the case, she noted in her dissent her disagreement “with Justice Scalia’s contention that foreign and international law have no place in our Eighth Amendment jurisprudence. . . . . Obviously, American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of its exposition so dictate. . . . But this Nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries.”

In short, it had become necessary to include robust defenses of turning to foreign and international materials. The disagreement continued in other decisions, such as the 2010 Graham v. Florida and McDonald v. Chicago. A reference to foreign law, it seems, would no longer go unnoticed—and Justice Scalia’s strong opposition was certain to follow.

Justice Scalia’s criticism, underneath its signature combative rhetoric, zeroed in on central questions of comparative methodology: when, how, and why is it useful to consider foreign materials? In the end, he forced those favoring comparative inquiry on the Court, and those in the field of comparative constitutional law generally, to more clearly and rigorously articulate their methodological intuitions—and the field is better off because of it.

Suggested Citation: Claudia E. Haupt, Leading by Opposition: Justice Scalia and Comparative Constitutional Law, Int’l J. Const. L. Blog, Feb. 24, 2016, at: http://www.iconnectblog.com/2016/02/leading-by-opposition-justice-scalia-and-comparative-constitutional-law

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Published on February 24, 2016
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