From: "Rich Gauszka" 


"Bill Lucy"  wrote in message
news:MPG.1e7f5cb97d928709896b8{at}news.barkto.com...
> In article , jsadams{at}compuserve.com says...
>> >As I said, the others of her ilk that
>> >want to use foreign law over our Constitution should retire as well.
>> >
>>
>> Wouldn't the Ten Commandments count as foreign law?
>
> Not to mention the Magna Carta. Both have found their way into Supreme
> Court opinions, many of them in writings early on in our country's
> history.
>
>

You can throw in Roman law. The history of the court shows what a shallow
argument those that rail against 'foreign law' have

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=700176

This Article proceeds with its rather ambitious goal of summarizing the
Supreme Court's actual practice with respect to citing foreign sources of
law in the following manner. Parts II through V compile and examine some of
the most striking and significant cases in which the Supreme Court has made
reference to foreign sources of law throughout its history. Each Part
covers a time frame of approximately fifty years, starting with first half
century under the Constitution and ending with the modern period. These
four fifty year Parts are then further subdivided according to the types of
cases that cite foreign sources of law in each historical period. Thus,
Part II discusses several important cases in which the pre-1840 Supreme
Court cited foreign sources of law and includes a discussion of two
important influences on the Court during that time: the law of nations and
the civil law, particularly Roman law. Part III compiles and discusses many
noteworthy cases decided during the years between 1840 and 1890, including
both the infamous Dred Scott case and the well-known anti-polygamy case,
Reynolds v. United States, which both strikingly made reference to foreign
sources of law. Part IV discusses Supreme Court opinions citing foreign
sources of law decided between 1890 and 1940, including The Paquete Habana,
where the Court famously stated that international law is part of our law.
Part V then concludes by discussing many of the opinions of the Court from
1940 to the present which cite foreign sources of law. In general, we
believe our survey of the Court's practice shows a steady escalation in the
citation to foreign sources of law with the modern references to foreign
sources of law being definitely among the most striking. Part VI of this
Article then concludes by analyzing all of the cases discussed in Parts II
through V, addressing some of the unifying themes that appear in the
Court's citation to foreign sources of law throughout its history. These
themes include citing foreign law as a guide to determining reasonableness
or the meaning of the open-ended ban on cruel and unusual punishment under
the Eighth Amendment.

Our analysis of the Court's practice leads us to several conclusions.
First, we believe those who say the Court has never before cited or relied
upon foreign sources of law are clearly and demonstrably wrong. In fact,
the Court has relied on such sources to some extent throughout its history.
Second, the Court has, however, cited foreign sources of law with much more
frequency in far more important constitutional cases in recent years, as
Justice Scalia has suggested, and in addition the Court has tended to cite
foreign sources of law in some of its most problematic opinions such as
Dred Scott, Reynolds, and Roe v. Wade. This suggests Scalia is right to be
wary of the Court's new trend in this direction. Third, as Professor
Calabresi has argued elsewhere, citation to foreign law is most justifiable
when the U.S. Constitution asks the justices to weigh whether a certain
practice is reasonable, as it does in the Fourth Amendment, or whether it
is unusual, as it does in the Eighth Amendment. In contrast, citation to
foreign law is least justifiable when the Court is asked to determine
whether an unenumerated right is deeply rooted in American history and
tradition, as was the case in Lawrence, or whether a federal statute
violates American federalism rules, as it was asked to do in Printz v.
United States. In these cases, we agree with Justice Scalia that the
Court's task is to interpret the original meaning of our Constitution and
not to determine the current day reasonableness or unusualness of a
legislative practice. We thus think, with Justice Scalia, that in the
over-whelming majority of non-Fourth and Eighth Amendment, it will not be
appropriate for the Supreme Court to cite foreign sources of law. Citation
of such law is, in fact, a sign that the Court is falling into
policy-making, as it did in Dred Scott, Reynolds, and Roe v. Wade, and this
in turn suggests the justices are behaving illegitimately. We thus
substantially agree with the spirit if not all of the substance of Justice
Scalia's warning against citing foreign sources of law in U.S.
constitutional cases.

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