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Constitutional Interpretation and Reliance on the Law of Other Nations: Property Rights Version

By Jack M. Balkin

I have not had anything to say about the debate regarding whether the Supreme Court should ever look to other countries in interpreting provisions of the U.S. Constitution. In working on other issues, however, I came across the following passage that will no doubt surprise many, as it did me. The passage comes from a 1998 case that addressed a somewhat novel issue concerning the meaning of the Takings Clause. As far as I know, no one has brought this passage into the more general debate, which typically focuses on recent cases involving the death penalty. Note that among other countries, the Court cites the law of Finland. I will provide the passage, then the reference and the Justices who endorsed this reasoning:

Retroactivity is generally disfavored in the law, in accordance with "fundamental notions of justice" that have been recognized throughout history." . . . . A similar principle abounds in the laws of other nations. See, e.g., Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, 66 D.L.R. 3d 449, 462 (Can. 1975) (discussing rule that statutes should not be construed in a manner that would impair existing property rights); The French Civil Code, Preliminary Title, art. 2, p. 2 ("Legislation only provides for the future; it has no retroactive effect") (J. Crabb trans., rev. ed. 1995); Aarnio, Statutory Interpretation in Finland 151, in Interpreting Statutes: A Comparative Study (D. MacCormick & R. Summers eds. 1991) (discussing prohibition against retroactive legislation). "Retroactive legislation," we have explained, "presents problems of unfairness that are more serious than those posed by prospective legislation, be-cause it can deprive citizens of legitimate expectations and upset settled transactions." General Motors Corp. v. Romein, 503 U.S. 181, 191, 117 L. Ed. 2d 328, 112 S. Ct. 1105 (1992).

This is from an opinion written by Justice O'Connor and joined by Chief Justice Rehnquist and Justices Scalia and Thomas. The case is EASTERN ENTERPRISES v. APFEL,
524 U.S. 498 (1998).

Full post as published by Balkinization on July 16, 2009 (boomark / email).