Judges, Legislators, and Europe's Law: Common-Law Constitutionalism and Foreign Precedents

Abstract

Supreme Court citation of the opinion of foreign courts, a phenomenon common worldwide, is much more controversial in the United States than abroad. This controversy is difficult to explain solely with reference to the judicial-activism and separation-of-powers arguments that usually frame debates over the propriety of foreign citations. Supreme Court opinions are replete with references to extra-legal sources; why single out foreign case law as deserving of special condemnation? The answer, this essay suggests, derives in large part from the prominence of European case law from the civil-law tradition among the cited foreign precedents. As such, the current controversy stands as a reincarnation of 19th-century divisions over the transplantation of continental-inspired legislation. Throughout the 1800s, key jurisprudential figures (e.g., Kent, Lieber, Carter, and Dillon) argued that civil-law-based legal reforms, such as codification and social legislation, conflicted with the tenets of American constitutionalism. The current foreign-precedent controversy is, in many ways, a mirror image of older debates. In the 19th- and early 20th-century story, the main mechanism for the transplantation of continental-modeled law into the United States - and hence the main threat for those worried about foreign influence - was legislation. Opponents asserted that there was an inherent antagonism between American constitutionalism and legislation inspired by continental political systems. Today, the roles have reversed, with some judges serving as agents of legal transplantation (notably from Europe) and some legislators seeking to guard the gates with campaigns against foreign citations, among other tools. This thesis finds support in the prominence of references to core differences between Europe and America within the current debate. The essay offers two such examples. The first is arguments advanced on behalf of a congressional resolution condemning citations to foreign law, and the second is Justice Scalia's response in Printz v. United States to Justice Breyer's comments on the structure of federalist institutions on the continent.

Keywords: foreign precedent, constitutionalism, Supreme Court