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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. THE POSNER-SUNSTEIN ARGUMENT A. The Condorcet Jury Theorem B. The Posner-Sunstein Application II. CONDORCET IN HISTORICAL CONTEXT A. Benjamin Franklin B. Thomas Jefferson C. James Madison D. American Readers E. Historical Summary III. CONDORCET IN CONSTITUTIONAL TEXT AND STRUCTURE A. Bicameralism B. Federalism C. Juries IV. CONDORCET AND FOREIGN LAW V. CONDORCET AND CONSTITUTIONAL INTERPRETERS VI. CONDORCET AND CONSTITUTIONAL CHANGE CONCLUSION
INTRODUCTION
In two of the most controversial cases of the past decade, the Supreme Court relied on foreign law to help determine the meaning of the United States Constitution. (1) These foreign citations caused quite a stir. Several Justices have spoken extrajudicially about whether such reliance on foreign law is proper, (2) and Justices Scalia and Breyer even went so far as to debate the issue outside of court. (3) Congress has held hearings (4) and considered resolutions and bills disapproving the practice. (5) And scholars, of course, have let their views be known as well. (6)
But in a recent issue of this Law Review, and despite all the ink already spilled, Eric Posner and Cass Sunstein found something new to say. (7) With characteristic iconoclastic creativity, they offer a new argument for reliance on foreign law: the Condorcet Jury Theorem. Put simply, this Theorem demonstrates that, under certain circumstances, the majority view on a question is very likely to be correct. It follows, Posner and Sunstein argue, that courts may be wise to rely on the majority view of foreign governments when deciding questions of U.S. law.
This invited Response concludes that, neat as it is, their argument puts the cart before the horse. The Posner-Sunstein article begins with the Condorcet Jury Theorem, which it presents in an entirely ahistorical way. Only afterwards does it turn, briefly, to the U.S. Constitution. This Response demonstrates how one might approach the same question from a more traditional starting point-constitutional text, history, and structure. As it turns out, Condorcet and his Jury Theorem do have a proper role to play in this discussion, but it is quite different from the one that Posner and Sunstein suggest.
While there are, in fact, intriguing historical connections between Condorcet and the Framers, the Constitution that the Framers ultimately wrote demonstrates a conception of governmental structure sharply different from that of Condorcet. In short, Condorcet's ideas can usefully inform constitutional interpretation--but primarily by way of contrast. It turns out that Condorcet's vision of law and politics was distinctly "universalist," imagining all people everywhere seeking the correct answer to questions of law and policy. This universalist vision is central to the Jury Theorem, the most basic condition of which is that each "juror" answer the same question. And it is also essential to the Posner-Sunstein application of the Theorem, which posits that questions of law will often be relevantly similar from country to country. But the Framers' vision, as reflected in many of the Constitution's textual and structural features, was distinctly more localist. As careful analysis of features like bicameralism, federalism, juries, and the amendment mechanism will show, the Constitution favors decisionmaking mechanisms that harness multiple collective bodies with distinctly varied geographic and institutional perspectives, each answering subtly different questions. In short, despite Condorcet, the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states.
Part I of this Response briefly summarizes the argument put forth by Posner and Sunstein. Part II adds texture to the ahistorical Posner-Sunstein account, by locating Condorcet in historical and constitutional context. Part III tells a richer story of the dialogue between Condorcet and the Framers, exploring the complex interplay of their ideas. It concludes that the Framers self-consciously rejected many of Condorcet's most fundamental ideas of constitutional design, including a central premise that is essential to the Posner-Sunstein application of the Jury Theorem. With this more nuanced account in mind, Part IV returns to the question of using foreign law to interpret the U.S. Constitution. It concludes that the Constitution itself, with its manifest rejection of central Condorcetian premises, refutes the notion that it should generally be interpreted by reference to foreign law. Part V points out that the Constitution itself implies several tiers of constitutional interpretation, by several different "juries"--but nowhere does it suggest that foreign governments, too, are to be "jurors" of the U.S. Constitution. Part VI recasts the issue as one not of constitutional interpretation but of constitutional change. From this perspective, as well, constitutional text and structure refute reliance on the law of other states.
I. THE POSNER-SUNSTEIN ARGUMENT
A. The Condorcet Jury Theorem
To understand the Posner-Sunstein argument, it is necessary to understand the Condorcet Jury Theorem on which it is based. This is the Theorem in its simplest form: Assume a factual, true-or-false question. Assume that any given person has a greater than 50% chance of getting the question right. Finally, assume that each person answers independently, based on his own private information. The Theorem states that under such circumstances, the more people one asks, the more likely it is that a majority of the answers given are likely to be correct. (8) As the number of people asked increases, the chance that a majority will be correct approaches 100%. (9)
The Theorem has been extended to questions with more than two possible answers, where a single answer is selected by a plurality. (10) It has also been extended, with certain qualifications, to situations in which the votes of the "jurors" are correlated. (11)
The Condorcet Jury Theorem thus provides some formal mathematical support for majority rule. It holds that under certain circumstances, majority rule can effectively aggregate the imperfect information of a population to achieve a superior result.
B. The Posner-Sunstein Application
Posner and Sunstein seek to apply the Condorcet Jury Theorem to the current controversy over reliance on foreign law in U.S. courts. Here is a simplified summary of their argument.
They posit that some difficult questions confronted by the Supreme Court have been answered already by foreign governments, and that under some circumstances, a given foreign government may be more than 50% likely to have answered the question correctly. If so, then by the Condorcet Jury Theorem, a majority of foreign governments are very likely to have answered the question correctly. Therefore, the Supreme Court would be wise to rely, at least in part, on the majority view of foreign governments when resolving such questions. In short, Posner and Sunstein say, "[T]he Jury Theorem provides the simplest argument for following the practices of other states: it suggests that if the majority of states believe that X is true, there is reason to believe that X is in fact true." (12)
Of course, the Posner-Sunstein argument is quite a bit more nuanced than that. As one would expect, Posner and Sunstein anticipate many of the potential objections to their thesis. (13) The analysis is subtle and sophisticated, and the article is eminently worth reading. The critique that follows, however, is largely independent of these nuances, and so, for current purposes and in the interest of brevity, this oversimplified summary will suffice.
C. The Application to U.S. Constitutional Interpretation
Only one additional introductory point is necessary. Posner and Sunstein mean for their argument to be entirely general, applying to all sorts of legal questions and all sorts of institutional actors. They suggest that courts (U.S. and foreign) should consult law foreign to their jurisdictions, whether for common law, statutory, or constitutional cases. (14) They contend, further, that lawmakers (U.S. and foreign) should consult law foreign to their jurisdictions when deciding whether to enact legislation. (15)
This Response addresses only one slice of this broad, general claim--but it is by far the most controversial slice. This Response speaks only to the use of foreign law to interpret the U.S. Constitution.
As it turns out, the basic Posner-Sunstein insight--that the Jury Theorem and the Constitution have something to say to each other, and that the conversation between them might usefully inform the current controversy over foreign law--is more interesting than their article lets on. By locating Condorcet in constitutional context and contrasting his ideas with those embodied in constitutional text, history, and structure, a richer and more complex thesis comes to light. Condorcet and his Jury Theorem do have an appropriate and illuminating role to play in this analysis. But the role is quite different from the one that Sunstein and Posner describe. In short, the Framers self-consciously rejected many of Condorcet's most central notions of constitutional structure, and the Constitution itself refutes the use of foreign law in its interpretation.
Posner and Sunstein acknowledge that their argument is likely to have little or no purchase with originalists, who wonder "why a poll of United Nations members today has any bearing on the meaning of a constitutional text that James Madison drafted in 1791." (16) As Posner and Sunstein admit, "It is ... to some extent correct to think that originalism, by itself, excludes reference to foreign precedents; if the Constitution means what it originally meant, the contemporary practices of foreign nations are usually immaterial." (17) And again: "[I]f the meaning of a constitutional provision is a matter of uncovering the original understanding, the views of other states may not be terribly informative." (18) And finally, in short, "[i]f the applicable theory of interpretation makes international practice irrelevant, the argument for consulting international practice is over before it begins." (19)
Just so. But the critique that follows is deeper than this basic originalist objection. It demonstrates that using foreign law to interpret the U.S. Constitution per the Condorcet Jury Theorem is inconsistent with basic principles reflected in the Constitution itself. The practice should generally be rejected not just by originalists but by anyone who takes seriously constitutional text, history, and structure.
II. CONDORCET IN HISTORICAL CONTEXT
To discern the proper role of Condorcet and his Jury Theorem in constitutional interpretation, one must begin by locating the Condorcet Jury Theorem in historical context, something that Posner and Sunstein make no attempt to do. Marie Jean Antoine Nicolas Caritat, Marquis de Condorcet, mathematician and social philosopher, Secretary of the Academy of Science in Paris, first published the Jury Theorem in his Essay on the Application of Mathematics to the Theory of Decision Making (Essai). (20) For someone with a historical bent, of course, the first question is the date of publication--a fact that is oddly absent from the Posner-Sunstein article. As it happens, this remarkable work was published in the year 1785. (21)
That is to say, Condorcet published his Jury Theorem two years before the U.S. Constitution was written, four years before it was ratified, and six years before the Bill of Rights was ratified. Surely any article purporting to apply Condorcet's work to questions of constitutional analysis should begin with this remarkable temporal proximity. And the date, of course, prompts the next question of historical context: is it possible that the ideas in Condorcet's Essai might have crossed the Atlantic in time to influence the U.S. Constitution?
As it turns out, there is a fascinating body of scholarship on just this question, (22) none of which is cited by Posner and Sunstein. This literature is too rich to be digested comprehensively here, but a brief sketch will suffice to show how one might proceed to locate Condorcet in constitutional context.
A. Benjamin Franklin
Condorcet corresponded with Benjamin Franklin as early as 1773. (23) When Franklin went to Paris in 1776, (24) the two men got to know each other, (25) and, of course, they talked politics. Describing Franklin, Condorcet wrote that "his politics were those of a man who believed in the power of reason and the reality of virtue." (26) Condorcet explained the groundwork for his argument in the Essai in a 1782 speech delivered to the Academy, while Franklin was still in Paris and an active member. (27) And there is at least some reason to believe that Franklin and Condorcet discussed the Jury Theorem specifically. (28)
In 1785, after eight years in Paris, Franklin returned to the United States, (29) and he quickly took up a central role in Philadelphia's political discourse as president of several organizations, including the American Philosophical Society, (30) the Supreme Executive Council of Pennsylvania, (31) and the Society of Political Enquiries. (32) Both George Washington (33) and James Madison (34) visited Franklin in Philadelphia, presumably to discuss issues of constitutional design. (35) And of course, in 1787, Franklin attended the Constitutional Convention. (36)
B. Thomas Jefferson
Meanwhile, the year before Franklin left Paris, Thomas Jefferson arrived. (37)...
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