Is it hypocritical for legal conservatives to complain about the citation of foreign law, when they often cite Blackstone?
Regardless of Blackstone's politics, aren't legal conservatives being a bit hypocritical when they scoff at the idea we could learn anything from modern-day foreign jurists, while at the same time consulting their well-thumbed copies of the Commentaries for the views of foreign jurists two-and-a-half centuries ago?
The answer is yes - and Scalia cheerfully admits it. "[T]he reality is I use foreign law more than anybody on the Court," he told an audience at American University in 2005. "But it's all old English law."
Conservatives justify this double standard because Blackstone, as the preeminent legal thinker of the Eighteenth Century, influenced our own framers. On this view, Blackstone was as important to our Constitution as James Madison or Alexander Hamilton. (Scalia has cited Madison - the Constitution's primary draftsman - less often than he cites the oracular Blackstone.)
I wonder from time to time just how long scholars from the 18th Century will have such a strong influence over our jurisprudence. At some point, don’t we have to admit that individuals who have been dead for centuries can’t offer us relevant guidance on modern issues? I’ll use the movie Minority Report as an example: In that movie, the police are able to see into the future. Can anyone really suggest that Blackstone can offer guidance as to whether the visions of computer-enhances mutated humans should allow the police to arrest for committing a crime that hasn’t happened?