Matthew's Foray into Blogging

Thursday, January 26, 2006

A New Source of Constitutional Interpretation

There is a recent trend on the Supreme Court of citing international opinion to support decisions interpreting the United States Constitution. The Supreme Court of the United States is charged with interpreting the United States Constitution. I recall learning in the Constitutional Law course I took about the sources of constitutional interpretation. These include (1) the text of the Constitution, both literally and its purpose; (2) its structure and context, such as the creation of the federal system and separation of powers between the three branches of government; (3) the history surrounding the drafting and adopting of the Constitution; (4) the practices of the legislative and executive branches, that is, how they apply the Constitution; (5) all important precedent; and (6) sound social policy. Nowhere among these does international practice appear. I suppose it is acceptable for the Supreme Court to consider the practices of other nations for guidance. It is not as though foreign laws are binding upon the U.S. High Court. It seems rather odd, though, that the Supreme Court is now considering this new source in discharging its duty. Would it not be more fitting for Congress to take into account the laws of other nations when it is drafting legislation, were it so inclined, rather than the judiciary being influenced by the practices of Britain or Japan?

5 Comments:

  • are you a lawyer?

    By Blogger joey♥, at 1:03 PM, January 26, 2006  

  • Yes, licensed in Texas for almost nine months, now. Learning to be a lawyer. Found a job about three months ago with a skilled practitioner who is willing to teach me.

    By Blogger Matthew, at 5:03 PM, January 26, 2006  

  • When determining whether or not to create a law, I think it makes tremendous sense for legislation to look at what is happening in other parts of the world.

    I also don't see a fundamental problem with the courts looking to how other countries deal with issues, provided they look to those other countries for guidance, not as the foundation or basis for their rulings.

    I'm currently reading a case for Wills, Simpson v. Calivas, 139 N.H. 1 (New Hampshire, 1994). One of the issues in the case is whether there is a duty by an attorney who drafts a will to use reasonably care to the intended beneficiaries. This was a case of first impression in New Hampshire, and to help reach their conclusion, they "look for guidance to other jurisdictions," and note that "the overwhelming majority of courts that have considered the issue have found that a duty runs from an attorney to an intended beneficiary." id.

    The court in New Hampshire looked to what other states did when interpreting how to apply the law of New Hampshire. The New Hampshire Supreme Court did NOT base their decision solely on out of state law, rather they applied the laws of the state of New Hampshire after seeing how other states ruled in similar situations. If we expand that reasoning from interstate judiciaries to international, it does not seem improper to consider how other countries rule on certain issues.

    By Blogger Steve, at 6:44 PM, January 26, 2006  

  • Wait, you have to be licensed to practice law? Crap.

    By Blogger hal the brown, at 8:11 AM, January 27, 2006  

  • Yeah, the State makes you jump through all sorts of hoops if you want to practice law.

    By Blogger Matthew, at 5:23 PM, January 27, 2006  

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