IGNORE THIS POST. ICH BIN JA VIELLEICHT NICHT "AMERIKANISCH" GENUG.

Via the folks at Claremont, we find this testimony by Prof. Jeremy Rabkin in support of a congressional resolution that reads as follows:

Resolved, That it is the sense of the House of Representatives that judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements are incorporated into the legislative history of laws passed by the elected legislative branches of the United States or otherwise inform an understanding of the original meaning of the laws of the United States.

Members of Congress should express their views on how the Court does its job, and they should certainly let the Court know when they think that the Court is going in the wrong direction. The issue of citation to foreign precedent is a serious one, and Prof. Rabkin's argument raises some important concerns.

My worry about this particular resolution, though, is that it is partly an attempt to take a swipe at rulings that I think were rightly decided. Lawrence v. Texas seems to be at the center of this particular controversy (and it is the only decision cited disapprovingly both by Congress in the text of H.Res 568 and by Prof. Rabkin). So instead of saying that it should still be the law in this country that we can throw gay people in jail, one argues that such decisions are really an importation of "foreign ideas" into our homegrown, ruggedly particular jurisprudence. Instead of members of Congress actually voting in favor of throwing gay people in jail, they grumble -- darkly -- about a foreign invasion that will eventually erode the foundations of the republic.

Fair enough, I suppose. And to be fair, many people are quite willing to attack Lawrence as wrongly decided and as the expression of elite opinion that is more at home in Strasbourg, France than in Strasburg, PA. At this stage in the game, after Lawrence, such talk is pretty cheap for legislators, much like pro-life talk was cheap between Roe v. Wade and Webster (see Neal Devins, Shaping Constitutional Values, 142-143). After Roe, Devins argues, legislators could respond to pro-life constituencies without much fear that they would be punished for actually restricting abortion rights, since the courts were there to satisfy pro-choice constituencies. When the Court signaled in Webster (1989) that it was willing to countenance rather severe restrictions on abortion, legislators perceived that the courts might not bail them out of trouble with pro-choice constituencies, and the tide of pro-life legislation slowed to a trickle. I suspect that something similar is happening here, post-Lawrence, and legislation like H.Res. 586 bobs up and down in the wake waves.

Prof. Rabkin argues that citations to foreign precedent "will encourage judicial activism." But is a habit of reference to foreign precedent any more an invitation to judicial activism than a habit of reference to precedent of the home-grown variety? In the context of sodomy laws, there is already enough precedent lying around for any position that an appellate judge might wish to take. [Or, a Supreme Court Justice, rather.] Think that sodomy laws are really constitutional? Well, just rely on Bowers and reject Lawrence, which overturned Bowers. Stranger things have happened. Think that abortion can be prohibited under our American Constitution? Just go back to the pre-Roe understanding, as Scalia has shown that he is willing to do. Such rulings would no doubt be attacked as "activist" by people who rely on Lawrence and Roe, but that says more about the malleability of the word "activism" than anything else.

What this particular attack on Lawrence ignores is that the reference to foreign precedent was partly a response to the argument in Bowers that the western world was united in condemnation of sodomy. See here. It was Chief Justice Burger who invited an appeal to foreign experience to justify approval of Georgia's anti-sodomy statute in Bowers. He was just flat out wrong, and in Lawrence the Court spent some time pointing that out.

Take finally the Court's ruling in Atkins, which has also aroused the ire of the no-citations-to-foreign-precedent crowd. Prof. Rabkin contends that in Atkins the Court "adopt[ed] European views on capital punishment for murderers of subnormal intelligence." I'll leave it to the careful reader to wonder whether a few lines in footnote 27 of the majority opinion in Atkins really prove that it is "European" to believe that we shouldn't execute mentally retarded offenders. The opinions read to me more like a genuinely home-grown dispute between red-blooded American judges who disagree over how to read the Eighth Amendment's ban on cruel and unusual punishment. Does Prof. Rabkin really want to contend that the only "American" solution to the problem is to execute the mentally retarded?