Friday, October 28, 2005

Can Scalia Write or What?

Can Scalia Write or What?

This is a book review written by Justice Scalia. Once again he demonstrates why textualism is the best means of interpreting the Constitution. His theory is slightly different than mine posted below, so I must revisit my theory.
FT June/July 2005: Books in Review

Thursday, October 20, 2005

Schumer has a point?

Schumer has a point?
The AP reports:
Sen. Chuck Schumer, D-N.Y., said the panel's recommendations to eliminate the state and local tax deduction would slap a $12 billion tax on New Yorkers. Rep. Steve Israel, D-N.Y., and Rep. Katherine Harris, R-Fla., said another suggestion — shrinking homeowners' tax breaks — would hurt families in states with expensive housing.

Yes, New York would get hit with more taxes, but why should Indiana taxpayers New Yorker's voting stupidity? Indiana needs more tax revenue, but raising taxes in Indiana is not politically tenable. Instead, we get a much smaller federal income tax deduction due to lower taxes: translated, that means that the federal government is not giving us as much discount on our taxes. All other things being equal, if New York pays more federal taxes ($12 B) and Indiana pays more taxes (let's make up a number for this exercise - $500M), the federal government will have $12.5B that it could theoretically cut out of its budget. As theory goes, the federal government could cut the federal tax rate by an amount to return the $12.5B to the taxpayers. I would hazard a guess that Indiana would get more than $500M in savings. If it were $700M in savings and Indiana adjusted its tax rate higher from 3.4% to capture that $700M, we would end a small state subsidy of a big state tax debacle.

All speculation, but sound theory. I wonder what the facts would be.

Thursday, October 13, 2005

Foreign Law & Court Decisions

Foreign Law, Constitional Law, & the Courts


The use of foreign law in making legal decisions is becoming the discussion point for the king of talk radio Rush Limbaugh. Rush has regular contact with far better lawyers than I, but his discussion misses a few points that are a bit more subtle than he is making it seem to his non-lawyer audience. I have also heard local talk show host Abdul Hakim Shabazz on WXNT 1430 in Indianapolis talk about this. Abdul, as he is commonly advertised, is a lawyer by training, and it shows in his discussions. Unfortunately Abdul's understanding of foreign law is also confused because he is a victim of the poor use of history of law courses in law schools when he says that we use "foreign law" when we look to English cases.

I am a former note editor of the Indiana International & Comparative Law Review (1990-1991 volume). I appreciate the value of foreign law in the process. But why do we look at any law from outside a jurisdiction? How should international law play out in Constitutional issues versus common law issues? What is truly foreign law?

Rush’s Postion

Since this is a growing debate, looking at Rush's comments is a good place to start with the current understanding of well-informed, legal laymen. I would summarize Rush's points as being that (1) the US Constitution cannot be interpreted using foreign law; (2) judges can't make law, so looking to foreign law can't be used. On point #1 Rush said,

[U]nless it's in our Constitution it is irrelevant when you are deciding constitutional law that comes before you in the form of cases at the Supreme Court. It's just that simple, but if you're going to have a personal view -- like Justice Breyer obviously does, a personal view -- that what they're doing around the world is something that we can learn from, that may be, independently speaking, but if it's not in our Constitution, it ought not be in anybody's reasoning or anybody's decision-making when it comes to deciding law in cases that come before the Supreme Court. What Justice Breyer is essentially saying here is that there are certain things going on in this country that he disagrees with, and he may find a better way of handling them in foreign countries, and since he's a judge, and since other judges where writing these things in other countries, why, it would be silly not to incorporate them!

On item #2 on judges making law, Rush said the following:

Do you know that foreign law was used to overturn 19 state laws on sodomy? It was foreign law. Justice Kennedy cited it. Well, what good is any law in any state if nine lawyers at the Supreme Court can find what they're doing elsewhere around the world and say, "You states are so far behind the curve. You don't know what you're doing. They're way ahead of us, say, in Belgium. So we're going to going to incorporate Belgium into our decision on this case." Sorry. If it's not in the Constitution, you can't do that, and this started with Roe vs. Wade -- and this is the big argument that people have. Once you start finding things that aren't there, and pretending that they are, or inserting them yourself as a judge, the Constitution becomes meaningless, folks.

All this rigmarole and hoity-toity talk about human rights and civil rights and democracy? All of it would be meaningless. The only way it would have meaning is if a majority of judges agreed on some civil right or human right or what have you, or if they want to create a new one that's not in the Constitution. That's not how these things happen. The laws are not written by judges. They're not supposed to be. The laws are written by elected representatives in Congress and the state legislatures. If they want to go scrutinize foreign law, if they want to make a bill out of it and they can convince enough members of Congress as elected officials that we send there to do so, and then get the president to sign it, well, then fine. But this is not how this is supposed to happen, and Breyer knows, I think, he's under the gun. He won't stop talking this. He's got a book out about it, now. This is an argument going on within the court itself. You've got Scalia and Thomas, and you had Rehnquist, who are dead-set against all of this. We don't know where Harriet Miers comes down on this. We might find out in the hearings, but we don't know now. But there are plenty of other people out there whose opinion on this we do know.


History of American Common Law

Now any first year law student would immediately pick an argument with Rush about whether judges make law. Rush is a strong proponent of the legal doctrine of stare decisis: "let the decision stand." All of this argument can't get confused if you start listening in the middle and take short cuts in history and logic. Rush is making a valid point but the first year law student's challenge is not valid. Let's take a few steps back and look at what stare decisis is all about.

Our system of law arises out of the Treaty of Winchester (1153) which established to Writ of Right. This was the petition to the king to settle land disputes between competing lords arising from the long civil war (1) Queen Matilda and later the-soon-to-be-King Henry II (father of Richard the Lion Hearted and King John of Robin Hood and Magna Carta fame) and (2) King Stephen. This process was important because 4 competing legal schemes existed (1) Danelaw, (2) East Anglian, (3) Wessex (the source of the current monarchical succession), and (4) another I can't remember -- Sussex, I believe. The Norman French King Henry had followers he had promised land. King Stephen had followers he had promised the same land. After King Henry took over peacefully at Stephen's death, a Common Law grew under King Henry that ignored the competing legal systems. This land dispute resolution process proved so powerful over the coming centuries it eventually replaced the 4 competing systems. It did not reach into the other kingdoms of the modern UK: Wales, Scotland, or Ireland.

When the American Constitution was passed, Article III, section 2, clause 1, specifically brought the English Common Law and its sister body of law "equity" to the federal judicial system. This means that the English Common Law was not "foreign law," as Abdul has claimed, it is the parent law of the American court system. Reference to the parent law would make sense if referring to other court decisions makes sense.

Why Precedent?

So why do courts look to one another? There are historical reasons and practical reasons. Chief among a litany of reasons are the Common Law being the King's Writ of Right (i.e., order to find the plaintiff-lord's right to the land in question over the defendant-lord) being the source of law. Even early in this process, King Henry II was so busy being a military general in France that he left these decisions to judges acting in his name, i.e., in the name of the Crown. These judges wanted to act consistent with the King's wishes, so they tried to look to the King's prior decisions with similar facts for guidance. If the judge followed the King's example, they were less likely to incur the rather of the mercurial King Henry II. As a matter of historical practice, the judges, as proxies of the king, were trying to act like they were thinking like the King, so reference to his past decisions was instructive.

This piece of history belies the practical benefit of this practice. If a judge looks at past cases with similar facts, he can learn what the earlier court's logic was. Following precedent is just a practice in using similar logic in similar cases. This duplication of past patterns served the country of England well as its commerce grew and risk of legal conflicts grew. Having predictable legal precedents actually reduces the risk of litigation. As a lawyer, I constantly advise my clients based on what the likely outcome in litigation would be. Why go to court with a known losing case? Save the attorneys' fees and headaches, unless you think you can get a different result. Following precedent means disputants can resolve their disputes outside of court more efficiently.

What happens if a court has a case that has never been decided in its history? With 50 states and a federal bench, American lawyers are accustomed to looking outside of the jurisdiction for case law that is similar. Enterprising lawyers can take advantage of the multiplicity of countries who are the descendants of King Henry II's Common Law: Canada, Australia, British West Indies, Bahamas, and the UK. Looking to these countries becomes dicier all the time as their respective legal histories diverge and these countries base more of their decisions on their own constitutions.

If the logic of a court case can be stripped of the visicitudes of their respective consitutions (to which I will return in a moment) and parliamentary legislation, Artistolean logic is Aristolean logic. Why should a judge have to invent new logic when he doesn't have to do so? This is very similar to mathematical proofs in high school geometry classes. Once the class proves to themselves that when 2 lines cross opposite angles are sysmetrical, the class can then use that as an established theorem. All you have to do is cite the theorem to short-hand the whole discussion. This process that Noam Chomsky called "chunking" is helpful in building more complex ideas more efficiently. We don't need to go back in math and debate the effects of parallel lines, basic arithmetic, Newton's calculus, Einstein's theories of relativity, etc. We can focus on the conclusions that we can draw on more complicated questions.

Proper Constitutional Analysis

This theorem building process is supposed to exist in the law, too. The problem is that, while mathematics and science have hierarchies of established postulates, theorems, hypotheses, and questions, the law is more jumbled. The problem of applying foreign law reflects this jumble. It shouldn't be so jumbled. It is actually very easy to layout the hierarchy of rules. Unfortunately for Justice Breyer, this exercise exposes the fallacies of his approach. Nevertheless, let's give it a try.

First, the US Constitution is the highest source of law. This is the voice of the people. We, the people, have imposed rules on our government at all levels to which the government must comply. All laws must be made consistent with the Constitution, so interpreting the Constitution is really about verifying if laws were made properly. As the evidence about the people who have debated and agreed to the Constitution, it is a contract between the people, and like all contracts, it must be "strictly construed." That is, if the document says something, it must be read to mean exactly what it says. "Speech" means speech, not expression. We should use the dictionary definition of terms. The dictionary used should be the one closest in time to the approval of the Constitution. As any person knows, over hundreds of years, a language changes. Its process has slowed in recent centuries, but the death of Middle English and its replacment by Early Modern English took less than a hundred years. Using modern dictionaries may be better researched, but it is likely to introduce unintentional errors with the passage of time and addition of new definitions.

Second, as a contract, the US Constitution should only be interpreted using sources outside of the Constitution when the language is ambiguous. This is where Justice Brennan's progeny make trouble, like Justice Breyer is trying to do. I will come back to this. "Speech" is not ambiguous. A person has a right to stand on a soap box make a speech. New technology transmitting that speech through the ether does not make the speech less valid. The Constitution does not mention the transmission of speech through the ether. Consequently, there is no Constitutional issue about FCC regulation of the airwaves. Where ambiguity about "due process" arises, we should only look to the thinking of authors of the Constitution. The Federalist Papers are invaluable in this regard since they were written at the same time for specific purpose of explaining the Constitution by its authors and defenders to cause its approval by the several states. If newspapers of the era had quotes of these same persons, they would be valuable, too. As time passed, these same persons had further thoughts. These become less and less valuable as personal, non-theoretical biases slipped into their thinking. Nevertheless, the comments of Secretary of the Constitutional Convention James Madison, as author, are infinitely more valuable than Ambassador to France Thomas Jefferson. Jefferson had no input into the Constitution. His role as the author of Virginia's Declaration of Rights is a "persuasive document" but it is not an "interpretive document." Madison writing about his authorship helps us to interpret his exact words. Jefferson wrote a document on which Madison relied. That is hearsay evidence about what Madison thought. It is not admissible for this purpose.

Third, if previous cases on the same subject have addressed these first 2 points, they can be cited to chunk the previously established doctrine into the new case. Translated into legalese, this means by citing the previous case's analysis the current court can "incorporate by reference" the previous decision. This citation is encouraged under the doctrine of stare decisis. Stare decisis tends to favor not changing the previous analysis. However, if new information is forthcoming that changes the validity of the previous court's decision, then the current court is obligated to test the validity of previous decisions.

Reliance on Previous, Good Logic

This is an important point. Stare decisis does not encourage the blind leading the blind. It encourages standing by sound, tested, and established logical analysis. What information would tend to give rise to changes in previous cases? If the previous case made a mistake, the new case should overturn the faulty logic and establish a new precedent. The case of Brown v. Board of Education overturning Plessy v. Ferguson's separate but equal doctrine is a great example. Plessy was based on the idea that having 2 separate facilities was not Constitutionally questionable if the facilities were equal. As a purely logical exercise, this is unquestionable. We do it all the time with men's and women's bathrooms and locker rooms. The flaw in applying the logic is that in practice separate was not equal. Blacks did not have comparable facilities. They had separate. Plessy's logic was sound but flawed because it did not fully take into account the facts.

In Aristolean logic, you can say, "If A then B, if B then C, therefore if A then C." So "If 2+2, then 4. If 4, then 3+1. If 2+2, then 3+1." In this case, no intervening facts can change the truth of these statements. In law, we deal with a series of events that can always be interrupted by intervening events. Logic alone would suggest that, "If a pregnant cow dies, then her blood quits circulating. If the pregnant cow's blood quits circulating, the unborn calf dies. If the pregnant cow dies, the unborn calf dies." This is sound logic, but it can be proven to be false if the veternarian delivers the calf by c-section.

This makes legal reasoning difficult to apply in a solely Artistolean pattern. In law school, this is handled by trying to separate analysis of law from application of fact to the law. Students are taught to (1) identify legal issues, (2) determine the applicable law and precedent, (3) apply the facts, and (4) reach a conclusion. Identifying issues is a subject for a different day. The problem is determination of law and precedent and applying facts.

The problem is that courts and lawyers get lazy. In determining the law is different than determining precedent. Because some judges have had the hubris to declare, "The law is what I say it is," lawyers have fallen to the erroneous belief that case precedent is law. It is not. Precedent can be overturned by the whim of the proper court. Law can only be overturned by established, legislative bodies.

Precedent is a process of building sound, logical constructs. Since courts must decide for one party over the other, it must reach a decision. Where no law exists, the case must be thrown out. Without further historical consideration, we have logical incongruity in our system.

Lower courts must follow precedent. This is simply to say that they must use the same logic on similar cases. If a case differs on its facts, the logic can differ. The problem is that higher courts’ methods of broadcasting their wishes on how the logic should be followed in the future. These courts roam far a field of the actual dispute and pronounce on broad theories of law. These are helpful to lawyers to understand the actual decision, but ultimately precedent is only about the actual logic that reaches the court’s holding.

In some sense, the higher court may be like listening to that loud-mouth uncle at Thanksgiving dinner. He talks loudly about his brilliance and past conquests, but ultimately whether you give him white meat or dark meat comes down to a simple “white meat, please.” If you want to limit his discussions of how to cook the perfect turkey, you just offer him the white meat without asking. The lower courts just want to give the white meat and move on: how should this case be decided?

Role of Judges as Legislative Gatekeepers

Judges were the king's proxy – or, to borrow the Spanish king's vocabulary, the viceroy, the assistant king. The judge's role as viceroy is limited to judicial functions, that is, resolving disputes between parties. This is a derivative of the Common Law scheme, born of a treaty between lords centuries ago and built by judges under the direct control of a monarch for centuries. This system relied on something akin to King James' doctrine of the divine right of kings. Only through Magna Carta, the growth of Parliament, and the Glorious Revolution's elevation of William and Mary did the executive control over the function of law-making weaken.

Our Founders took this evolutionary change and broke it soundly with the Declaration of Independence and the adoption of the Constitution. They brought the judge's power to decide cases and reliance on established precedent from the king's bench over to the new states. They broke the legislative function and judicial function clearly away from the executive function, save checks and balances. Here we have continuity and revolution side by side.

The Founders interjected a new source of law into the mix through the Constitution. Unfortunately, they did not give us much guidance on how interaction of the Constitution and the Common Law were to play out. The contractual theory, noted above, solves for that lack of guidance within a legal framework that was already in use when the Constitution was written and is consistent with the "We, the People," language.

By the Constitution's continuing the Common Law in light of its birth in the Treaty of Winchester, American courts still retain some of their viceroy function of creating precedents to new questions. The Supreme Court is clearly the court of last resort under Article III, Section 2, Clause 2, Sentence 2, for all questions of "Law and Fact." This authority includes "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Article III, Section 2, Clause 1. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Article VI, Clause 2.

All laws made in pursuance of the Constitution are the supreme law of the land. So Chief Justice Marshall's decision to acknowledge judicial review arises from the authority of the Supreme Court to hear cases arising under the Constitution and the Laws under the authority of the Constitution. Article VI makes clear that the courts must follow the laws if made in pursuance of the Constitution. The courts then have an obligation to question whether a Law of the United States was made in pursuance of the Constitution. It is a "threshold question": a question of law that must be answered when raised before the enforcement of the law can be considered. This is a procedural question. Does Congress have the power to issue such a law? Did Congress pass the law using the proper procedure and send it to the president? The contractual analysis is key for this process.

Constitution as Contract

Overruling the People’s voice, Congress, the Supreme Court has an awesome responsibility. It is very easy for humans to want to impose their desires on the society in which they live. The ability of Congress and the Supreme Court to oversee the other’s behavior is an interesting construct. It is not unique to put these limits on a representative assembly. In Rome, two institutions were established to attempt the same result. The first were the censors. Their job was to keep the Senate and assembly for running amok and follow good morals. The censor could limit legislative behavior. The Tribune of the Plebs was given a similar power over the Senate, the day-to-day legislative body. Since the Founders were well-versed on Roman history, it is not perverse to imagine that this had some impact on how they envisioned the Supreme Court’s role.

The nature of a written contract is unusual in legal disputes. Few forms of evidence are more powerful and given more deference than a written contract. The rationale for this is powerful. A written contract has placed before both parties as they are dreaming about the future of their relationship. Each has a chance to edit the contract to fit his vision more accurately. The courts do not want to get in the business of changing the terms of a contract because the parties have already had a chance to make those changes.

Interestingly, the Constitution bears a resemblance to this process. The people of the day had a chance to say what they wanted in a contract between the states. Each state had to choose to participate in the new contract. Yet, the Supreme Court has an uneven history of enforcing the language of the contract as strictly as it would a contract between two people. If the Constitution is nothing but a contract, why should lesser contracts receive more respect from the courts?

Contracts are enforced strictly to encourage voluntary contracts and give predictable results in court. If the Constitution were enforced the same way every time, the Supreme Court would be less powerful but the costs of litigation would plummet. Why litigate a case when any amateur lawyer could predict the outcome?

Constitution as Agent of Change

On a basic level, this country needs to debate what the Constitution is designed to do. Is it designed to set up the role of different parts of government and define their duties and restrictions? Is it designed to implement utopia and cut off any movement from that vision of utopia?

The justices best representing these separate visions are Scalia and Brennan respectively. Justice Scalia looks at the Constitution as a utilitarian document: define jobs, limits, responsibilities, overseers, etc. Justice Brennan looks at the Constitution as the embodiment of a greater vision for America. Brennan freely acknowledged the limits of the Founders’ vocabulary but saw his role to make the American society fit to the vision that Brennan interpreted on behalf of the Founders. These two processes have very different results. The best way to look at the differences is deal with a problem that has come up that the Founders would never have envisioned.

In this example, I do not claim to be speaking in either justice’s voice. Is a person on television entitled to curse or show nudity as part of their First Amendment right to free speech? Justice Brennan’s thinking on the Constitution could lead to conclusion that speech is merely a form of expression. Television is merely a means to transmit expressions. So televising expression is subject to First Amendment protections. But the justice could take the position that we want some limits on the expressions on television, so we point out that the airwaves are publicly owned and the Congress has right to control publicly owned airwaves.

This simple example shows that the Brennan approach can lead to widely opposite results. FCC regulation could be Constitutional; it could not be. It depends on the whims of the justices.

Scalia type approach would say, speech is the act of talking on a subject. A person has a Constitutional right to talk, but the Constitution is silent on how such speech may be broadcast, so there is no First Amendment protection. This is simple. It avoids later litigation on the subject. Speech is speech. A person considering a flag burning case would look at this and say, “I can speak about burning a flag, but I can’t avoid legal restrictions on flag burning.” No case. No litigation. Interestingly, this same person may be able to point to Article I, Section 8, to claim that Congress has no authority to prohibit flag burning or even the establishment of a national flag or emblem.

This leads to the complaint by many that this simplicity of result actually would lead to many injustices. President Lincoln said, “The best way to get a bad law repealed is to enforce it strictly.” If flag burning is not available to be made criminal, let the court say so. The Congress and states can then address whether it should be by amending the Constitution.

Foreign Law as a Source

Through this long discussion, I have touched on the history of common law, the growth of judges as viceroys and their role in lawmaking, Constitutional interpretation, but I have not touched on the issue at hand: the role of foreign law in court decisions. Allow me to correct that.

Foreign countries face many of the same problems we do: what to do about murderers, whether to limit smoking in public, how to regulate commerce, how to settle disputes, etc. To the extent that we can learn from other countries, why shouldn’t Justice Breyer be able to learn from all humanity like we learn from the German Einstein about relativity or Plato about reality and concept?

Simple. We have a contract that must be observed. Benjamin Franklin as a tradesman who did regular commerce with England and France loved restrictions on duties and freedom of commerce. Benjamin Franklin as a scientist thrived on the free exchange of ideas with the European scientists he encountered when he was our first ambassador to France. Would Franklin as Constitutional Convention delegate have seen the Constitution as part of a clean break with the British Crown? I submit that he and his fellow delegates would have seen it as a break.

The Constitution gives a clean starting point for where our discussions about governmental structure, duties, and limits arise. It is unique to us. The Twelve Tables of Rome, Swiss Confederacy, Mayflower Compact, Virginia Declaration of Rights, and Articles of Confederacy all preceded the Constitution. Yet, each cannot tell us what the convention delegates meant. The delegates had a chance to choose specific words and debated those choices. Ultimately, the words they chose and the words the American public of 1787 had to consider were those written in the Constitution.

No other country has a legal right to affect our Constitution’s operation without entering into a ratified treaty with us. Should we consider their opinions? Sure, but where would that consideration fit in a proper legal analysis of the Constitutionality of a law?

Congress passes a law to outlaw French wine. Clearly, the French winemakers would be opposed. An American importer takes the case through the courts to the Supreme Court. The US government argues that the law meets the requirements of Article I, Section 8, Clause 3 (Congress’s power to regulate commerce with foreign nations). The importer is going to argue that the French courts like French wine? How does this tell us anything about Clause 3? The French regulate wine so that they have fancy names from fancy places so they should be imported without regard to the Constitution? This will not work as an argument. No argument that avoids talking about treaties will get around the Constitution’s clear empowerment of Congress to act.

If a treaty is involved, it is treated co-equal with an Act of Congress and not an amendment of the Constitution. Reid v. Covert 354 U.S. 1, 17 (1957). (hat tip: Mickey O. in comments at PoliPundit.) Consequently, if the French winemakers point out a provision from the WTO treaty, they must also show that the Congressional Act was not more recent.

Foreign law does not provide any context for why the Constitution is written as it is. Reference to the Common Law of the era is not the same as foreign law, because the Common Law was the working law of the land in the United States at the time. The Common Law was nearly indigenous law.

Foreign law on interpretation of the US Constitution can only make sense if a foreign country has nearly identical language in its constitution has dealt with a similar case. Then rules of chunking or precedent can apply. The judges can test the established reasoning for soundness and logical validity. If the French constitution or Déclaration des droits des hommes does not have a similar provision to “full faith and credit,” “cruel and unusual,” or “freedom of speech,” it provides us no logical construct to begin the analysis. Foreign law cannot help much with the Constitution because it has nothing to do with the nature of the agreement that we reached between ourselves and have continued to abide by.

Similarly, foreign law is irrelevant on acts of Congress, unless the Congressional Record makes reference to foreign law. The Congress has expressed its opinion and may have had the author the foreign law testify before committee. Regardless, the law is now settled, even if its meaning is muddy. The courts will have a record of the witness to Congress and can look into that source in greater detail. The court will not have to pick randomly for foreign law.

This leaves one different area of law: the deciding of cases where no Constitutional provision, no act of Congress, nor treaty apply. The court’s decision must rely on precedent of the Common Law. Here, foreign law is potentially invaluable. The logic of other jurisdiction of the fifty states, the federal courts, Great Britain, Australia, and even France can be considered. This is where the thoughts of great people are invaluable. This is where creative thinking is helpful. This is where the courts can wreak havoc.

This is legislating. Ultimately, good judges will write opinions that decry in plain language that the law is slow to adapt and beg the legislature to provide some remedy, but will throw the case out of court for “failing to state a claim upon which relief maybe granted.” The judge will likely stimulate a debate if the case is egregious and cause a law to be made. He will look insightful and intelligent. His plaintiff will be mad, but possibly have new rights soon thereafter to try again.

Conclusion

Ultimately, the use of foreign law can tell us little about the US Constitution or Congressional enactments. The Constitution’s contractual nature makes it hard to look at evidence outside the four corners of the document that help us understand. If we have issues that the Constitution doesn’t address, Congress can consider making laws, but consultation with foreign is part of the legislative function.

If the issue comes to a court without Constitutional or Congressional guidance, the court can try to consult foreign courts, but ultimately this is probably a good sign that the case needs to be thrown out of court with a strong red flag from the court that a legislative body has to fix this problem. Our history allows some ability for courts to follow logic to reach decisions but this must be used carefully or else the courts become legislatures.

The cost of legislation is high enough. If one legislator can see the value of a new law at a luncheon, the legislature can be convinced to fix it within a year. If one judge can see the value of a new law, it will take thousands of dollars in attorneys’ fees and years of litigation.

Justice Breyer’s theory that foreign law is a good source for American Constitutional jurisprudence is wrong. It is historically misleading. It is logically and legally faulty. It is economically inefficient. It is highly arbitrary. It is ultimately destructive of the rule of law over the rule of men.