A BuzzFlash Reader Contribution

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Judge Alito and "foreign law"

A BUZZFLASH READER CONTRIBUTION
by Margie Burns

Senator Jon Kyl (R-Ariz. ), one of the White House point men in Congress, posed a question for Judge Alito about “foreign law.” Citing a couple of past cases in which judges had included legal arguments from Britain and other countries in their decisions, Kyl asked Alito where he stood on the use of “foreign law” in American court cases. Alito gave one of his shortest and clearest answers, calling foreign law not very helpful in American cases and going on to say that the Constitution gave the best protection and that foreign law need not be used except in treaty cases, etc.

It is necessary to note here that Kyl did specifically mention Britain. Indeed, Britain was the first foreign nation he listed in connection with the older legal decisions he brought up.

Given that these personnel do and say little by chance, a few concerns arise in connection with that phrase “foreign law.”

1. One reasonable question would be whether the Kyl and Alito conception of foreign law includes the Magna Carta and the famous British unwritten constitution. Are they foreign too? The gradual development or evolution of the unwritten constitution limiting absolute power and protecting individual liberties in Britain is part of the legal history of the United States. Developments in England underlie much of the American body of law and American legal reasoning. One premier example is the legal bulwark of habeas corpus. So, along with current law in foreign nations today, under that rubric of “foreign law,” does habeas corpus get thrown out?
2. As mentioned in the PBS commentary and in news reports, Alito as a federal judge in an appellate court has consistently sided with employers against employees. So what happens if “foreign law” does not figure in, the next time the high court has to decide on some issue involving U.S. employees and foreign employers? Will the foreign employer be exempt from the laws of his own country here, and exempt from the laws of the U.S. in his own country?
3. Also noted in numerous news reports is that Alito has consistently weighed in on the side of police power against the rights of the individual. His defense of strip searching a 10-year-old is only the most flamboyant example. So, relative to the above, what happens if foreign police or the authorities of another nation in some way abuse a U.S. citizen, and the case rises to the high court? If the authorities violated even the laws of their own country, will that point be irrelevant from the get-go?

A BUZZFLASH READER CONTRIBUTION