Foreign Law as Legislative Fact in Constitutional Cases

ABSTRACT Do we really need another law review article about foreign law in constitutional interpretation? In fact, we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have advocated just such an approach, and at least one sitting Justice has joined in this chorus in both extrajudicial commentary and in a dissenting opinion. But to date, the Court has yet to take this much-mooted step, perhaps due to an awareness of the complex theoretical challenges such an approach would raise. A few opponents to the Court's actual practice have forcefully observed that the Court's use of foreign law has lacked the rigor and impartiality that would be necessary to make it credible. What even these scholars have not done, and what this Article ventures, is to consider these claims within the broader context of the Court's use, and misuse, of all manner of evidence employed in connection with questions of legislative fact in constitutional adjudication. I. INTRODUCTION In November 2010, Oklahoma voters, by an overwhelming margin, amended their state constitution to command that "courts shall not look to the legal precepts of otiier nations or cultures."1 The Oklahoma ballot initiative is only the most recent of many manifestations of hostility to judicial reliance on foreign law. In die last decade, die propriety of the U.S. Supreme Court's invocation of foreign law in constitutional cases has been one of the hottest topics in legal scholarship. Yet the heat generated so far has proven unusually disproportionate to the light cast. By examining the subject as one aspect of the Court's confrontation with questions of legislative fact in constitutional cases, this Article seeks to correct that imbalance. Legislative facts, also sometimes referred to as social facts, transcend the parties to a discrete case and concern the public policy judgment leading to die enactment of legislation. At least since the early 1940s, commentators and jurists have distinguished legislative facts from adjudicative facts, which concern the application of a general rule to the unique, concrete circumstances of a particular dispute. In contemporary jurisprudence, the constitutional validity of a challenged statute often turns on a question of legislative fact. For example, the constitutionality of the federal Partial-Birth Abortion Ban Act depended upon whether the proscribed procedure was medically necessary in a significant number of cases. Numerous physicians and six lower federal courts said that it was. But die Supreme Court concluded that die issue was subject to "documented medical disagreement" and that Congress was entitled to side with the skeptics.2 Likewise, the result in many of the most prominent constitutional rulings from the last decade ultimately turned on die Court's assessment of a disputed question of legislative fact, including decisions concerning the scope of congressional power under the Commerce Clause3 and Section 5 of the Fourteenth Amendment,4 the requirements of due process5 and equal protection of the law,6 and the breadth of the First Amendment's protections of religious7 and expressive freedom.8 Nor is the centrality of legislative facts to constitutional litigation anything new, though the frequency and extent of the Court's reliance on them has increased with the late twentieth-century turn towards using balancing tests in constitutional law.9 To some extent the significance of legislative facts in constitutional cases is an inevitable corollary to judicial review, which makes all the more astounding the judiciary's failure to establish a consistent or coherent approach to resolving disputes about them. …