Friday, January 13, 2006

ALITO: uses of foreign law

KYL: Now, with my cards on the table, I turn to you. What is the proper role, in your view, of foreign law in U.S. Supreme Court decisions? And when, if ever, is citation to or reliance on these foreign laws appropriate?

ALITO: I don't think that foreign law is helpful in interpreting the Constitution.

Our Constitution does two basic things. It sets out the structure of our government and it protects fundamental rights.

The structure of our government is unique to our country, and so I don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government.

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents.

Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human -- in fact, I don't think there were any that protected human rights the way our Bill of Rights did.

ALITO: We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution.

There are other legal issues that come up in which I think it's legitimate to look to foreign law. For example, if a question comes up concerning the interpretation of a treaty that's been entered into by many countries, I don't see anything wrong with seeing the way the treaty has been interpreted in other countries. I wouldn't say that that's controlling, but it's something that is useful to look to.

In private litigation, it's often the case -- I've had cases like this -- in which the rule of decision is based on foreign law. There may be a contract between parties and the parties will say, "This contract is to be governed by the laws of New Zealand or wherever." Of course, there, you have to look to the law of New Zealand or whatever the country is.

So there are situations in litigation that come up in federal court when it is legitimate to look to foreign law, but I don't think it's helpful in interpreting our Constitution.

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