hope I have made it clear that my belief that the 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 emulating Europeans, much less the rest of the world.
I wrote an opinion for the Court a few terms back [Crawford v. Washington, 541 US 36 (2004)], overruling an earlier case [Maryland v. Craig, 497 U.S. 836 (1990)], which had held that the confrontation clause is satisfied so long as the unconfronted testimony – that is to say, hearsay testimony – has “particularized guarantees of trustworthiness.” The opinion pointed out that that the confrontation clause was designed precisely to prevent a procedure considered trustworthy by continental European nations, and others that followed the civil law tradition. “Examinations of witnesses upon interrogatories,” wrote John Adams, “are only by the civil law; interrogatories are unknown at common law, and Englishment and common lawyers have an aversion to them, if not an abhorrence of them.” As recently as 1993, for example, France was still defending its use of ex parte testimony before the European Court of Human Rights, arguing that the defendant’s accuser in a drug trafficking case had a “legitimate interest in remaining anonymous,” and that the defendant’s rights were adequately protected so long as “the judge held hearings which enabled him to satisfy himself” that the witnesses stood by their statements. Should we have loosened up our confrontation clause, in deference to 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 functions. Other European countries have somewhat similar systems, although the extent of their participating in executive functions may be more limited. This is a practice that Tocqueville contrasted unfavorably with our own, as long ago as 1835. Should we change our mind?
In No. 46 of The Federalist, James Madison speaks contemptuously of the governments of Europe who are “afraid to trust their people with arms.” Should we revise the Second Amendment because of what these other countries think?
In November of 2002, the Council of Europe approved what was called “an additional protocol to the convention on cybercrime,” which would make it illegal to distribute anything online which “advocates, promotes or incites hatred.” 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 that Europeans are – and nothing has changed. I dare say that few of us here would like 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 beliefs 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.
Justice Antonin Scalia
February 21, 2006
Remarks at the American Enterprise Institute.
[If the founders of our country wanted the supreme law of our land to emulate Europe they could have done so. If people today want our laws to emulate Europe they can push through the constitutional amendments to make those changes. And if in the process they infringe on fundamental human rights they can deal with the consequences.—Joe]