Jeffery J. Ventrella: Importing International Law: WWPD—What Would Publius Do?
Ever since Lawrence v. Texas as well as Roper v. Simmons it’s been the rage. The ACLU has sponsored seminars and conferences about this. Several sitting Justices—participating on the rubber chicken circuit (that’s NOT part of the Courts of Appeal)–have advocated for it and against it. Scholarly writing has counted heads and addressed it. What is it? The role and propriety of utilizing international and foreign precedent in interpreting American constitutional matters. Maybe, just maybe, in evaluating this jurisprudential de jour, one should consider what the advocates for the constitution may have opined concerning this issue. After all, the constitution does explicitly reference “foreign law” such as the law of nations and treaties. In an interesting passage in Federalist No. 42, Publius (Madison) discusses piracies and felonies on the high seas. In this connection he notes that the term “felony” requires definition precisely because the term varies from jurisdiction to jurisdiction:
Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither common nor the statute law of that, or any other nation, ought to be a standard for the proceeding of this, unless previously made its own by legislative adoption.” (emphasis mine)
Hmmm . . . Let’s see: Madison, using common sense really, understood that one cannot simply land on a term and import that term’s meaning from another jurisdiction. Such would “impracticable” as well as a “dishonorable and illegitimate guide.” Rather, to properly define a substantive constitutional provision first requires a legislative act—not a judicial fiat. Axiomatically, it cannot be the case that interpreting the constitution can be properly accomplished by simply surveying similar sounding terminology from other sovereign jurisdictions—and Madison knew it. As to Foreign law—What would Publius do? He would reject the importation of foreign precedent in interpreting domestic constitutional matters. It is the legislature which must define—after republican deliberation—constitutional definitions such as “felony” or “cruel and unusual” et al. Let’s pass on this most recent trendy jurisprudential appetizer, and instead rely on the honorable, practicable, and legitimate main course of American constitutional jurisprudence.