The Opening Brief

Over at PrawfsBlawg, there is an interesting discussion on what role decisions from foreign jurisdictions should have in aiding the interpretation of our constitutions.  The question posed in the lead post is why we tend to get upset about citation to decisions from foreign countries when appellate courts look for assistance in interpreting the US Constitution, yet we do not even raise the question when state courts look to the decisions of other states to interpret their state constitution.

Here is my contribution to the discussion:

It often makes sense for states to look to the constitutions of other states — often the state constitutions were copied from each other (California’s original constitution borrowed heavily from New York). It does not make much sense for states to look to cases interpreting the federal constitution, however, since the two levels of constitution are so very different (the federal being a grant of power and the state being a limit on power, to name just one significant difference).

That difference between state and federal constitutions, however, pales in comparison to the difference between the US Constitution and the constitution of another country. The constitution is a product of the political history of the people. To make the foreign constitution at all relevant (none of them pre-date the US Constitution), you would at least need to show some relevant parallels in the political history.

This is an important topic.  Appellate advocates should pay attention to how their courts use decisions from other courts and other jurisdictions.

Professor Richard Primus has posted a provactive working paper on SSRN in which he argues:

“In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question.  In those circumsances, what the public thinks must be an ingredient in the judge’s own view of the right answer.”

This should be an interesting read.  I will be especially interested in seeing how Professor Primus handles cases in which the public strongly disagreed with constitutional decision at the time, but now believes the decision was correct (I am thinking here of Brown v. Board of Education, as an example).

For those that still might harbor the idea that politics do not intrude on legal issues, check out this post over at The BLT.  Tony Mauro is reporting on which side of a Supreme Court case the Solicitor General has decided to support in the Stoneridge litigation after intense lobbying by all concerned.

The Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1 provides an interesting insight into the views of the justices on their roles in interpreting the Constitution.  In his dissent, Justice Breyer noted “The Founders meant the Constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time. Hence it is important to consider the potential consequences of the plurality’s approach, as measured against the Constitution’s objectives.” The plurality opinion, authored by Chief Justice Roberts, dismissed this approach: “Justice Breyer’s position comes down to a familiar claim: The end justifies the means.”

Justice Kennedy seems to adopt a more pragmatic approach.  He decides that the goal of avoiding a racial imbalance is one that the schools can pursue, and recognizes that some consideration of race will be required to achieve that goal.  He noted:  “The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that ‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ ante, at 40-41, is not sufficient to decide these cases.” Justice Kennedy continued: “To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.”

While approving the goal, however, Justice Kennedy would limit the means available to the school districts to achieve that goal.  In his view, school districts are “free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.”

This divergence of judicial philosophy led Terry Eastland to note: “the debate among the justices in Parents Involved in Community Schools deserves to be taken to the campaign trail, and deserves to be discussed in terms of the kind of new justices who ought to be sitting–whether the next justice should be someone like Roberts or Thomas, say, or someone like Breyer. Kennedy, it is safe to assume, is not the sort of justice any candidate, of either party, is likely to suggest as a model.”