Seeing the U.S. Constitution through the eyes of foreign students
 |
| Judge White shares her learning experiences with her LL.M students. |
Chief Justice Charles Evans Hughes observed that the Supreme Court is “distinctly American in concept and function.” He likewise noted that few other courts in the world have the same authority of constitutional interpretation and none have exercised it for so long or with as much influence. As the French political observer Alexis de Tocqueville noted, “[T]he representative system of government has been adopted in several states of Europe, but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans.” The power of judicial review has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to new situations. With these thoughts in mind, I set about to teach Constitutional Law to the foreign law students and lawyers enrolled at USC’s LLM Program. While the Constitution permeates all that I do as judge, it had been some time since I had looked at its provisions or the cases interpreting it. As I prepared to teach the class, I fully expected to learn the subject more deeply as I revisited some of the seminal cases. What I did not expect was the degree to which I would learn from my students who came from an array of countries: Nigeria, Australia, Japan, Korea, France, Italy and China. After introducing the students to a brief history of the creation and ratification of our Constitution and its Amendments, many students were surprised to learn that the framers were resistant to the idea of placing too much power in the national government. After explaining that complaints about British rule foreshadowed the protections placed in the Constitution and the Bill of Rights, the students began to understand the importance of civil liberties in the drafting of the Constitution.
A world view
After discussing our history, my first question to the students was whether their native country had a constitution and if so, how the constitution impacted their courts. While most countries had a constitution, some students, particularly the Nigerian student’s comments were most revealing. His country has enacted six different Constitutions during a 100-year period. One became inoperative due to the 1966 military coup; another never fully implemented because of the military rule in effect from 1993 until 1999.
The Australian student revealed that while their Constitution dated back to 1900, it was given legal force by an Act of the United Kingdom parliament and it was not until 1986 that the Australia Act removed the power of the United Kingdom parliament to change the Constitution and provided prescribed referendum procedures. It was this Act that severed the last remaining constitutional links between Australia and the United Kingdom despite the fact that the monarch, Queen Elizabeth II, remains the monarch of both countries. The Japanese student explained that Japan’s Constitution was drafted under the Allied occupation that followed World War II and was intended to replace Japan’s previous militaristic and absolute monarchy system with a form of liberal democracy. The Japanese Constitution is rigid and has never been amended. It is most characteristic and famous for the renunciation of the right to wage war and for de jure popular sovereignty in conjunction with the monarchy. The Korean student explained that due to pro-democratic protests in 1987, a new Constitution became effective in 1988 which provided for an executive branch headed by a president and an appointed prime minister as well as a National Assembly and a judiciary consisting of a Constitutional Court, Supreme Court and lower courts. Of interest was the fact that the South Korean Bill of Rights qualifies individual rights by other constitutional provisions and pre-existing laws, including the National Security Act, which restricts due process rights in political cases. The French student explained that the French Constitution is that of the Fifth Republic enacted in 1958 and amended 18 times since. It creates a High Court and a Constitutional Council along with an Economic and Social Council. It was not until 1971 that the Constitutional Council was called upon to invalidate a law that violated principles found in the preamble to the Constitution, including prior principles laid in the Declaration of the Rights of Man and of the Citizen. Italy’s Constitution came into force in 1948 and contained only general principles and requires enabling legislation, a process which, due to various political considerations, is still not complete. In China, the Chinese student explained that their Constitution is modeled after the 1936 Constitution of the Soviet Union and defines China as a socialist state under the people’s alliance of the working classes. It was enacted in 1982 and provides no special organization tasked with its enforcement but stipulates that the National People’s Congress has the power to review whether laws or activities violate the Constitution.
Judicial review
Perhaps the most interesting aspect of studying American Constitutional Law as a foreign student is the notion of judicial review. When Congress passed the Judiciary Act of 1789, the Supreme Court in Marbury v. Madison was called upon to determine whether it could exercise original jurisdiction in a case where the Constitution had not specifically provided for its jurisdiction. In holding that Article III did not give the Supreme Court original jurisdiction to issue a writ of mandamus as provided in the Judiciary Act of 1789, the Supreme Court established the right of judicial review over acts of the legislature. In declaring the Act unconstitutional, the Court stated “that a law repugnant to the constitution is void; and that courts as well as other departments, are bound by that instrument.” (Marbury v. Madison (1803) 5 U.S. 137 at 180.)
For many of the students, the concept of judicial review espoused by Marbury v. Madison was a difficult one to understand. Many commented that if Congress had enacted legislation that the Supreme Court should not have the power to declare it void. Once they understood the language of Article III which narrowly prescribed the Supreme Court’s original jurisdiction, they began to see how The Judiciary Act of 1789 attempted to expand its jurisdiction beyond what was prescribed. They also began to understand the Supreme Court’s role in reviewing federal executive actions and federal statutes. This was expanded upon as we looked at two other cases – Martin v. Hunter’s Lessee (1816) 14 U.S. 304, and Cohens v. Virginia (1821) 19 U.S. 264 – which extended the right of review to state-court decisions. There was a lively discussion about why Congress itself was unaware of the Constitutional limits. After all, in many of their countries, constitutional councils existed for the purpose of insuring that legislation passed constitutional muster. Furthermore, what if no one had brought the issue to the Supreme Court’s attention, how would our country insure that legislation met constitutional requirements? Did issues simply have to percolate through the courts in litigation? It was obvious from the question that the concept of judicial review was foreign to many of the students from countries where the constitutional review of government action is not within the judicial branch. In Germany and in post-1958 France, there is constitutional review but not in the ordinary courts, which are not allowed to rule on the constitutional status of government action. There are instead constitutional courts, with members chosen by the political branches. Before 1945, constitutional review was virtually unknown outside the United States. After World War II, the idea of constitutional control began to take hold in both Europe and Japan as well as in newly developing countries. In England, constitutional review is a political rather than a judicial function. Accordingly the students learned that because judicial review is an ordinary activity of American courts, a constitutional challenge can occur only when there is litigation. Thus, American courts can examine the constitutionality of a statue only if the case or controversy requirement is fulfilled.
Conversely, judicial review in continental Europe is exercised by special courts outside the ordinary judicial system and which retain a jurisdictional monopoly over constitutional issues. In contrast to Marbury v. Madison, when the Supreme Court declared that the judiciary’s role is to say what the law is, and whether it is constitutional, courts in Europe do not possess jurisdiction to disregard a statute repugnant to the constitution. The Italian student remarked that ordinary civil, administrative and commercial courts refer constitutional issues to the constitutional court. The French student commented that there is no review of enacted legislation at all. France’s Constitutional Council can examine the constitutionality of a proposed statute only before it becomes law and can offer advice on how an unconstitutional statute can be redrafted in a constitutional fashion. Unlike the American system where the constitutionality of a statute is asserted within litigation, judicial review in many of the civil law countries of Europe is exercised regardless of the existence of a legal dispute. In such a challenge, the determination is not fact-driven but simply a consideration of the lawfulness of legislation. In America, the binding effect is a result of stare decisis.
In discussing the benefits of American Constitutional law, the students commented that the review of constitutionality by an independent third branch of government ensured that lobbying did not play a part in the outcome. Likewise in the absence of an independent branch of government, if the legislation under scrutiny affects only a minority of the population, the minority would not have the political clout to determine the outcome, making the process inherently political.
Fundamental rights
Through the due process clauses of the Fifth and Fourteenth Amendments and/or the equal protection clause of the Fourteenth Amendment, the American Constitution protects certain “fundamental rights” with which the government cannot interfere unless strict scrutiny is met. Those rights include rights protecting family autonomy, procreation, sexual activity, medical-care decision making, travel, voting, access to the courts and the right to bear arms as well as freedom of speech and religious freedom. Criminal protections are insured through the Fourth, Fifth and Eighth Amendments. These rights are entrenched and form the backbone of our basic human rights, even though not all of these rights are explicitly mentioned. Interestingly enough, statutory law such as the Civil Rights Act of 1964 has become almost equally entrenched in safeguarding equal rights suggesting that insuring these rights can be addressed both by constitutions and statutory law. This concept was beautifully illustrated when several students offered comments about their native countries.
In the United Kingdom, there is a statutory bill of rights known as the Human Rights Act of 1998 which, while it does not empower courts to invalidate inconsistent statutes, has nonetheless been treated as a system of constitutional review.
Demonstrating the importance of human rights, both Germany and post-apartheid South Africa place the equivalent of the United States’ Constitution’s Bill of Rights at the beginning of their Constitutions. Equal protection of the laws In examining equal protection, the students learned that the right to equal protection of the laws was not made explicit in our Constitution until the Fourteenth Amendment was passed in 1868 with the hope of extinguishing slavery. They also learned that while the Constitution expressed the view that “all men are created equal”, the concept really only applied to “white men.” This was an uncomfortable subject for me to address to a group of students who were mostly of color.
I could sense how shocked the students were by the “separate but equal” doctrine of Plessy v. Ferguson (1896) 163 U.S. 537. To attempt to convey the concept, I had the students watch the video Beyond Brown – Pursuing the Promise, a PBS documentary released in 2004 on the occasion of the 50th Anniversary of the Supreme Court’s decision. The images of the wooden shacks which served as schools for black students vividly contrasted with the handsome brick buildings serving the white students. This led to a discussion of whether the objectives of the Supreme Court’s objectives had been achieved. Since the Brown Court had not dealt with socio-economic issues, the students felt that even though schools were attempting to integrate, the lack of equal funding for the schools did almost as much to defeat integration as physical separation by race.
Voting rights
Interestingly enough in the fall 2012 class, the students were mesmerized by the Presidential Election in November. After the results were determined, I asked the students to discuss their thoughts on the process. The Nigerian student became emotional in his response. He was stunned by how cordial the candidates were to one another in their acceptance and concession speeches. He was struck by how peaceful the process was and observed that in his country, elections were uniformly followed by riots and challenges to the legitimacy of the vote.
While there are four Amendments which address voting rights, emphasis was placed on the 15th Amendment’s assurance that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Voting is essential to a democratic society and it is through this process that citizens choose their government and hold it accountable. (Reynolds v. Sims. (1964) 377 U.S. 533,555.)
Despite this affirmation, the students expressed concern about the holding in Bush v. Gore (2000) 531 U.S. 98. If voting was so important to a democratic society, why were not all votes counted in Florida? The notion of hanging chads was almost comical. After all, America was a country known for its use of technology. The lack of standards for counting votes was mystifying. Analysis of the court’s decision provided us with few answers.
Abortion and gay rights
Equally interesting were the discussions on abortion and gay rights. In Australia, abortion is determined at the state level and is governed by state laws, the most restrictive state allowing it only to save the life of the mother and the most liberal allowing it on request. Nigeria allows abortion to save the life of the mother only. In Japan, while abortion is allowed, parental or spouse consent is required. In England, Italy and France, abortion is allowed for most reasons including economic or social reasons. Some students came from countries that recognized domestic-partner protections or allowed gay marriage, whereas others such as the Japanese students acknowledged a trend towards acceptance of gays but recognized that being gay used to be considered a mental illness. Catholic countries such as Italy had not yet acknowledged gay unions. France and Germany had civil-union laws and the French recently allowed gay marriage.
As we looked at the Roe v. Wade decision and its discussion of the right to privacy, the students read Justice Blackmun’s review of the history of abortion from ancient attitudes through English and American law to the present. He likewise discussed the medical technology allowing for safe abortions. Blackmun then focused on the Fourteenth Amendment by saying “[T]his right of privacy, whether it be founded in the Fourteenth Amendment’s conception of personal liberty and restrictions upon state action, as we feel it is, or, . . . in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade (1973) 410 U.S. 113 at 153.
The Roe v. Wade decision spurred a discussion of constitutional methodology. Should the Court protect such a right that is not specifically mentioned or intended by the framers? Some students felt that it was a logical inference; others were more constrained in their view, feeling that it was not something the Constitution should address but rather something which should be addressed by legislation. This question was posed in terms of all of the rights concerning family which have been held by the Court to be fundamental. Rights such as the right to marry, the right to custody, the right to keep family together, the right to control the upbringing of children, the right to procreate, and the right to purchase and use contraceptives are all rights not specifically mentioned but which are nonetheless rights which the Court has upheld on the basis of “liberty” which the Fourteenth Amendment says no state may deny to any person “without due process of law.”
Concluding thoughts
It is rare that one learns more from one’s students than the students learn from the instructor. This was one of those rare instances. I saw our Constitution through the eyes of my students. I learned about their governments and their observations of our history. Attempting to explain our country’s attempts to remedy slavery through Brown v. Board of Education was humbling. Discussions of human rights were exhilarating not just because our Court has read the Constitution broadly, but because we frequently take those rights for granted. The right to vote and have one’s vote count was never more poignant than when hearing from a student who couldn’t ever count on his vote making a difference. And yet, I had trouble reconciling the holding in Bush v. Gore with the students’ comments.
We sometimes take our Constitution for granted. It is good to go back and appreciate its intricacies. Notions of substantive and procedural due process infiltrate my day-to-day decision making, But, learning about them anew through the eyes of my students made it all the more poignant.
Judge Elizabeth Allen White sits in Department 48 of the Stanley Mosk Courthouse where she handles general jurisdiction trial matters. She was appointed to the Los Angeles Municipal Court in 1997 and elevated upon unification to the Los Angeles Superior Court where she’s served since 2000. She holds a B.A. from UCLA and a JD from Loyola Law School. She obtained her Paralegal Certificate from UCLA Extension in 1977 and has served as an Instructor for their Paralegal Training Program since 1998. She was honored with their Distinguished Instructor award in 2007 and Professional Achievement Award in 2012. She serves as frequent faculty for Continuing Judicial Education and served on the Board of the Governors of the California Administrative Office of the Court’s Center for Judicial Education and Research. She is the author of the Rutter Group’s California Paralegal Manual on Civil Procedure and a co-author of the California Paralegal Manual on Civil Trials and Evidence and California Paralegal Manual on Corporations. She is co-chair of the Judicial Education Committee for the Los Angeles Superior Court.
Note: Story courtesy of the August 2013 issue of the Advocate Magazine, published by the Consumer Attorneys Association of Los Angeles.
Previous Article
