Should the U.S. Supreme Court Cite Foreign Precedents?

The use of foreign law in U.S. courts continues to be in the news. Justice Antonin Scalia has been a forthright spokesman against outsourcing American law to foreign authorities. In contrast, other justices have expressed an openness to foreign sources to help decide issues arising out of modern developments not foreseen by the Founders. Their point of view has ample precedent in nineteenth century Supreme Court rulings on patents and women’s rights— precedents notable more for quantity than quality.

In 1822 Justice Joseph Story put the Court on the slippery slope of reliance on English law in patent cases with his opinion for a bare majority of the justices in the case of Evans v. Eaton. The dissenting justices protested in vain against relying on “decisions in England, of a date long subsequent to the [American] revolution, and many of them posterior to the passage of patent laws in this country, and which could not therefore have been in the contemplation of Congress at that time.”

In the Pennock case (1829) Justice Story attempted to answer this by invoking Sir Edward Coke as an authority on the English Statute of Monopolies (1624). This was the only English statute dealing with patents, which it did in a few words making patents for inventions an allowable exception to the general rule against monopolies. Coke’s distinctive contribution to English patent law (long before the statute) was his opinion that the common law did not countenance a patent on an improvement or addition to an existing product. This opinion had been thoroughly repudiated by England’s Court of King’s Bench many years before Story’s reliance on Coke. It came in patent infringement cases in 1795 and 1799 on James Watt’s steam engine.

Story’s use of English law in American patent cases first appeared just three years after English troops had burned down the Supreme Court’s chamber in the Capitol, along with every government office in Washington except the Patent Office. Sitting as a trial judge in Lowell v. Lewis (1817), Story based his decision on an English case, MacFarlane v. Price, in these words: “I accede at once to the authority, which has been cited.” Only after making this accession did he go to the American patent statute (1793) which completely disposed of the issue in dispute. Again, in his Note on the Patent Laws (1818) he exalted England’s case law under its Statute of Monopolies and its common law.

Thomas Jefferson, on the other hand, was outraged by the federal courts’ reliance on England’s common law. He considered it a legislative matter which required congressional action. He conceded Virginia’s legislative adoption of England’s common law. However, this was not much of a concession because of his conviction that the development of the common law ended with the Magna Charta, leaving only a severely truncated version of the common law in effect in his home state, in his opinion.

As for Lord Coke, this is what Jefferson, as a law student, wrote on Christmas day, 1762: “I do wish the Devil had old Cooke, for I am sure I never was so tired of an old dull scoundrel in my life.” Justice Story evidently did not share that view, and his influence continued to be felt long after he left the Court. As the nineteenth century went on, lawyers arguing patent cases in the Supreme Court had to be attentive to its continuing fixation on what England’s courts were saying, even after the Court in the Hollister and Thompson cases (1885) invoked the U.S. Constitution as setting a standard of “invention” which each patented must satisfy. Ten years after this, the Court in Potts v. Creager again paid its respects to the courts of the mother country for guidance in patent cases.

It took the Supreme Court most of a century to wean itself from the mother’s milk of English patent law, which in reality was judge-made law because of the English statute had so little to say on patents for inventions. The English statute itself was a dead letter for a century and a half from its enactment until shortly before the American Revolution, so English patent jurisprudence had only a short head start on American. But it proved decisive, given the Supreme Court’s reluctance to fashion a distinctively American patent jurisprudence based on the American patents statutes to match the buoyant optimism of such typically American enthusiasts as Abraham Lincoln and Mark Twain. Lincoln spoke of patent laws as one of mankind’s greatest discoveries—right up there with writing and printing and the discovery of America. As for Twain, in A Connecticut Yankee in King Arthur’s Court, he wrote, “ a country without a patent office and good patent laws was just a crab, and couldn’t travel any way but sideways or backways…the very first thing you want in a new country, is a patent office.”

It was in the area of women’s rights that the Supreme Court stumbled badly by relying on English law instead of American sources. One of developments presumably not specifically foreseen by the Founders and the authors of the Fourteenth Amendment was a woman’s aspiration to practice law. The Supreme Court dealt with this issue in its December 1872 term when it upheld the Illinois Supreme Court’s ruling that Myra Bradwell, as a married woman, was not allowed to practice law in the state Illinois because this was unheard of under England’s common law, which Illinois had adopted as the basis of its own law. Arguments on Mrs. Bradwell’s behalf invoking the Fourteenth Amendment and Article IV, Section 2, of the Constitution were of no avail.

In the Bradwell case the courts allowed foreign law—specifically, England’s common law—to nullify rights and liberties meant to be protected by what some today call old, narrow documents. If instead the Court in Bradwell had taken Justice Scalia’s approach and relied on the transparently clear intent of the Fourteenth Amendment it would have affirmed Mrs. Bradwell’s right to practice law, as she was qualified to do.

The nineteenth century disproves the notion that our Constitution necessarily becomes more dynamic and adaptable to modern changes by consulting foreign authorities instead of sticking to the original intent of the Founders and authors of the constitutional amendments. They may not have foreseen Mrs. Bradwell’s intention to practice law—and Justice Ruth Bader Ginsburg’s, as well—but the documents themselves are broad charter of personal liberty which needs no foreign authority to enlarge—or, more likely, to restrict.