The foreign source doctrine: Explaining the role of foreign and international law in interpreting the constitution

University of Cincinnati Law Review

Volumn 75, Issue 4, 2007, Pages 1389-1451

  Kuhner, Timothy K ^a  

^a ROGER WILLIAMS UNIVERSITY   (United States)

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EID: 34848883682     PISSN: 00096881     EISSN: None     Source Type: Journal    
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References (248)

1. Atkins v. Virginia, 536 U.S. 304 (2002);
2. Roper v. Simmons, 534 U.S. 551 (2005);
3. Lawrence v. Texas, 539 U.S. 558 (2003).
4. See Tom Curry, A Flap Over Foreign Matter at the Supreme Court: House Members Protest Use of Non-U.S. Rulings in Big Cases, MSNBC, Mar. 11, 2004, http://www.msnbc.msn.com/id/ 4506232/ (discussing Representative Feeney's calls for impeachment).
5. See infra Part I.
6. When questioned on the use of foreign law, Judge Roberts called it "a misuse of precedent" and noted that "[i]n foreign law, you can find anything you want," implying that there were no standards regarding which laws could be cited and for what purpose such citations could be made. Bill Mears, Roberts Fields Senators ' Queries for Second Day, CNN.COM, http://www.cnn.com/2005/POLITICS/ 09/13/roberts.hearings/index.html (last visited Feb. 17, 2007) (quoting Judge Roberts). The following exchange between Senator Coburn and then Judge Samuel Alito also provides a typical example: Senator Coburn: "[T]here's no reference at all to foreign law in terms of your obligations or your responsibility.... And I personally believe that [resorting to the use of foreign law is] an indication of not good behavior by a justice, whether it be a justice at an appellate division or a magistrate or a Supreme Court justice." Judge Alito: "I don't think that we should look to foreign law to interpret our own Constitution....I don't think that it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution. I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world." U.S. Senate Judiciary Committee Holds a Hearing on the Nomination of Judge Samuel Alito to the U.S. Supreme Court, 109th Cong. (2006), available at 2006 WL 53273 (questioning of Judge Alito by Sen. Tom Coburn, Member, S. Judiciary Comm.).
7. H.R. RES. 568, 108th Cong. (2004). Representative Feeney's non-binding "Reaffirmation of American Independence Resolution" was originally introduced as H.R. RES. 97, 108th Cong. (2004). For documents and a witness list regarding the hearing, see House Committee on the Judiciary, Hearings, http://judiciary.house.gov/Hearings.aspx?ID=27 (last visited Feb. 1, 2007). See also Representative Tom Feeney, Sponsored Legislation, http://www.house.gov/feeney/ sponsoredlegislation.shtml (last visted Feb. 1, 2007);
8. Curry, supra note 2.
9. See, e.g., Roger P. Alford, Misusing International Sources to Interpret the Constitution, 98 AM. J. INT'L L. 57, 58 (2004) (discussing the problems of democratic legitimacy arising from allowing foreign views to thwart domestic majoritarian views);
10. John Yoo, Peeking Abroad?: The Supreme Court's Use of Foreign Precedents in Constitutional Cases, 26 U. HAW. L. REV. 385, 387 (2004) (arguing that even "some type of deference" to foreign decisions constitutes a "transfer [of] federal authority to bodies outside the control of the national government").
11. 536 U.S. 304 (2002) (holding death penalty unconstitutional when applied to the mentally retarded).
12. 543 U.S. 551 (2005) (holding death penalty unconstitutional when applied to juveniles).
13. 539 U.S. 558 (2003).
14. Cases involving foreign relations, the war on terrorism, or international law are not examined here because they are not fairly termed "domestic disputes." See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (discussing the legality of indefinite detention of a U.S. citizen pursuant to the war on terrorism);
15. Rasul v. Bush, 542 U.S. 466 (2004) (facing the question of jurisdiction over the claims of foreign nationals held at Guantanamo Bay);
16. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (touching on the Alien Tort Claims Act);
17. Olympic Airways v. Husain, 540 U.S. 644 (2004) (construing the Warsaw Convention in regards to airliner liability for a passenger's death). It is logical, under standard precepts, that foreign or international law would arise in such matters. In the domestic cases examined in this Article, on the other hand, standard precepts are disturbed by the Court's citation of international and foreign laws.
18. See, e.g., Hamdan v. Rumsfeld, 126 S.Ct 2749 (2006) (involving foreign territory, foreign nationals, and the Geneva Conventions);
19. Sosa, 542 U.S. at 692 (involving a foreign national, a kidnapping on foreign territory, and a U.S. law that references the law of nations); Breard v. Greene, 523 U.S. 371 (1998) (involving a foreign national and a treaty on consular rights).
20. See infra Part III.
21. Thus, I exclude from my analysis cases where a minority of Justices referenced foreign sources. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (Ginsberg, J., concurring) (discussing the International Convention on the Elimination of All Forms of Racial Discrimination).
22. 110 U.S. 516, 531 (1884).
23. Id. at 521-32.
24. Id. at 529 ("[O]wing to the progressive development of legal ideas and institutions in England, the words of Magna Charta stood for very different things at the time of the separation of the American colonies from what they represented originally.").
25. Id. at 530 ("[I]t is better not to go too far back into antiquity for the best securities for our 'ancient liberties.' It is more consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government").
26. Id.
27. Id at 530-31.
28. 302 U.S. 319 (1937).
29. Id. at 325.
30. Mr. Palko was first convicted of second-degree murder, but later retried and convicted of first-degree murder for the same act. Id. at 321.
31. Id. at 325.
32. Id. Justice Cardozo died the next year. Palko is one testament to his judicial philosophy, one relevant aspect of which he gave to us in these words; "The great generalities of the Constitution have a content and a significance that vary from age to age. The method of free decision sees thru the transitory particulars and reaches what is permanent behind them." BENJAMIN CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 17 (1921).
33. Thompson v. Oklahoma, 487 U.S. 815, 869 n.4 (1988) (Scalia, J., dissenting).
34. 492 U.S. 361, 370 n.1 (1989) ("We emphasize that it is American conceptions of decency that are dispositive, rejecting the contention of petitioners and their various amici.. . that the sentencing practices of other countries are relevant. While '[t]he practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so "implicit in the concept of ordered liberty" that it occupies a place not merely in our mores, but, text permitting, in our Constitution as well,' ... they cannot serve to establish the first Eighth Amendment prerequisite, that the practice is accepted among our people." (internal citations omitted)).
35. 536 U.S. 304 (2002).
36. 539 U.S. 558 (2003).
37. 534 U.S. 551 (2005).
38. 356 U.S. 86 (1958). Trop is the only case examined where the act in controversy occurred on foreign soil. This Article examines uses of foreign and comparative precedent by the Supreme Court in cases whose jurisdictional nature does not so require. This case is in fact no exception. As the plurality stated, "[jhe fact that the desertion occurred on foreign soil is of no consequence. The Solicitor General acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country." Id. at 92.
39. Id. at 102 (citing Study on Statelessness, U.N. Doc. E/1112 (1949);
40. Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad, 32 POL. SCI. Q. 137 (1917)).
41. Id.
42. This more recent articulation of the Eighth Amendment's meaning will be discussed below. See analysis of Atkins v. Virginia, infra notes 59-72.
43. Trop, 356 U.S. at 99.
44. Id.
45. Id. at 101.
46. Id. at 100.
47. Id. ("The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.") (internal citations omitted).
48. Id.
49. Id. at 102-03 ("It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance.... The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion.") (citing Laws Concerning Nationality, U.N. Doc. ST/LEG/Ser.B/4 (1954)).
50. See id. at 126 ("Many civilized nations impose loss of citizenship for indulgence in designated prohibited activities.") (citing Laws Concerning Nationality, supra note 40).
51. 492 U.S. 361 (1989).
52. 433 U.S. 584 (1977).
53. 458 U.S. 782 (1982).
54. 487 U.S. 815 (1988).
55. Coker, 433 U.S. at 596 n.10 (citing DEP'T OF ECONOMIC AND SOCIAL AFFAIRS, UNITED NATIONS, CAPITAL PUNISHMENT 40, 86 (1968) (emphasis added).
56. Enmund, 458 U.S. at 801.
57. Id. at 796 n.22 ('"[T]he climate of international opinion concerning the acceptability of a particular punishment' is an additional consideration which is 'not irrelevant. ' It is thus worth noting that the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe.") (citing Coker, 433 U.S. at 596 n.10) (internal citation omitted).
58. Thompson, 487 U.S. at 830-31 ("The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community. . . . The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.") (internal citations omitted).
59. Id. at 830.
60. Id. at 868, n.14.
61. Stanford v. Kentucky, 492 U.S. 361, 370 n.1 (1989).
62. Id.
63. Id. at 370 ("In determining what standards have 'evolved,' however, we have looked not to our own conceptions of decency, but to those of modern American society as a whole."). This is the sentence to which the footnote regarding foreign nations' practices was appended.
64. Id. at 378.
65. This second notable aspect of the case is therefore clearly dicta, since no due process challenge was presented in Stanford.
66. Stanford, 492 U.S. at 384.
67. Id. at 389.
68. Atkins v. Virginia, 536 U.S. 304, 311-12 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)).
69. Id. at 316 n.21.
70. Id.
71. In Penry, 492 U.S. 302 (1989), the Court held that a congressional and state statute prohibiting such executions, along with the rejection of the death penalty by fourteen U.S. states provided insufficient evidence of the required "national consensus" against the practice. Id. at 334. The Atkins opinion's lengthy analysis of legislative enactments since Penry occupies pages 314-317 of the opinion. The Court's explanation for its holding at the outset of the opinion also characterizes domestic legislative change as determinative. Atkins, 536 U.S. at 307 ("[I]n the 13 years since we decided Penry v. Lynaugh ... the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case.").
72. Atkins, 536 U.S. at 316 (emphasis added).
73. Id. at 322 (Rehnquist, C.J., dissenting); 347-418 (Scalia, J., dissenting).
74. Id. at 322.
75. See id. at 322 (Rehnquist, C.J., dissenting) ("The Court's suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any 'permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.'").
76. Id. at 324-25 (Rehnquist, C.J., dissenting) ("I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court's ultimate determination. .. . For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant").
77. Id. at 325 (Rehnquist, C.J., dissenting).
78. Id. (citing Stanford, 492 U.S. at 368 n.1) (alteration in original).
79. Id. at 347-54 (Scalia, J., dissenting).
80. Id. at 347 (Scalia, J., dissenting) (quoting Thompson v. Oklahoma, 487 U.S. 815, 868-69 (1988) (Scalia, J., dissenting)).
81. Id. at 347-48 (Scalia, J., dissenting).
82. Thompson, 487 U.S. at 869 n.4 ("The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so 'implicit in the concept of ordered liberty' that it occupies a place not merely in our mores but, text permitting, in our Constitution as well. . . . But where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.") (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937) (internal citations omitted).
83. 543 U.S. 551 (2005).
84. Id. at 578.
85. Id. at 575.
86. Id.
87. Id. at 577.
88. Id.
89. The United Kingdom's experience was said to be of "particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment's own origins." Id. Indeed, the Eighth Amendment itself is what comparative law scholars call "transplanted law," that is, law taken from one cultural and legal environment and planted in another. It was copied almost verbatim from the English Declaration of Rights of 1689. See Weems v. United States, 217 U.S. 349, 377, 394-95 (1910).
90. Roper, 543 U.S. at 578.
91. Id. at 587 (Stevens, J., concurring).
92. Id. at 589 (O'Connor, J., dissenting) ("It is by now beyond serious dispute that the Eighth Amendment's prohibition of 'cruel and unusual punishments' is not a static command.").
93. See id. at 604 (O'Connor, J., dissenting) ("Because I do not believe that a genuine national consensus against the juvenile death penalty has yet developed, and because I do not believe the Court's moral proportionality argument justifies a categorical, age-based constitutional rule, I can assign no such confirmatory role to the international consensus described by the Court.").
94. See Atkins v. Virginia, 536 U.S. 305, 348 (2002) (Scalia, J., dissenting).
95. Chief Justice Roberts will likely have little bearing on the issue, as his views will likely prove duplicative of those of his predecessor.
96. See Harold Hungju Koh, The Globalization of Freedom, 26 YALE J. INT'L. L. 305, 308 (2001) (noting that "[i]n the early years of the American republic, when the United States was a small nation with almost no indigenous law, America was fundamentally a law-taker and a law-borrower.").
97. See Palko v. Connecticut, 302 U.S. 319, 325 (1937).
98. Roper, 543 U.S. at 616 (Scalia, J., dissenting).
99. Id. at 607 (Scalia, J., dissenting) (quoting THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossitered., 1961)).
100. Id. at 608 (Scalia, J., dissenting).
101. Id. at 607 (Scalia, J., dissenting) ("Alexander Hamilton assured that citizens of New York that there was little risk in [giving life tenure to judges who could nullify laws enacted by the people's representatives], since '[t]he judiciary . . . ha[s] neither FORCE nor WILL but merely judgment]'") (quoting THE FEDERALIST NO. 78, at 465).
102. Id.
103. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").
104. See H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985).
105. Roper, 543 U.S. at 624 (Scalia, J., dissenting).
106. See id. at 628 ("The Court's parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing.").
107. Atkins v. Virginia, 536 U.S. 304, 312-13 (2002) (internal citations omitted).
108. Id. at 321.
109. Id. at 320.
110. Roper, 543 U.S. at 626-27 (Scalia, J., dissenting).
111. Id. at 627.
112. Id. at 551 (majority opinion).
113. 538 U.S. 11 (2003) (fifty-year sentence for stealing videotapes).
114. 538 U.S. 63 (2003) (twenty-five-year sentence for stealing golf clubs).
115. The value of the video tapes stolen by Andrade was $153.54. See Linda Greenhouse, "The Supreme Court: Repeat Offenders, Justices Uphold Long Sentences in Repeat Cases," N.Y. TIMES, Mar. 6, 2003, at A1.
116. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
117. Id.
118. 126 S.Ct 2709 (2006).
119. See id. at 2722.
120. Thompson v. Oklahoma, 487 U.S. 869, 821 n.4 (1988) ("The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so 'implicit in the concept of ordered liberty' that it occupies a place not merely in our mores but, text permitting, in our Constitution as well.").
121. 410 U.S. 113 (1973).
122. Palko, 302 U.S. at 325.
123. Roe, 410 U.S. at 130-31 ("Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.. . . Most Greek thinkers. . .commended abortion, at least prior to viability.") (citing PLATO, REPUBLIC V, at 461;
124. ARISTOTLE, POLITICS VII, at 1335b 25).
125. Id. at 132-33 ("It is undisputed that at common law, abortion performed before 'quickening'-the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy-was not an indictable offense. The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins.") (internal citations omitted).
126. Id. at 136 ("England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, [in section] 1, a capital crime, but in [section] 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the 'quickening' distinction. This contrast was continued in the general revision of 1828.... It disappeared, however, together with the death penalty, in 1837 . . . and did not reappear in the Offenses Against the Person Act of 1861 ...that formed the core of English anti-abortion law until the liberalizing reforms of 1967.") (internal citations omitted).
127. Id. at 138 ("In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law.").
128. Id. at 130.
129. Thompson v. Oklahoma, 487 U.S. 869, 821 n.4 (1988).
130. 539 U.S. 558 (2003).
131. 478 U.S. 186 (1986).
132. The Texas court that upheld the anti-sodomy statute had itself made reference to foreign views, citing Montesquieu, Blackstone, and Roman Law. See Lawrence v. State, 41 S.W.3d 349, 361 (Tex. Ct App. 2001).
133. See Lawrence, 539 U.S. at 559 ("[T]he historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated.").
134. Id. at 572.
135. Id. at 576.
136. Id. at 573.
137. Id.
138. Id. at 598.
139. Id. "Civilization" here of course must be understood as a narrow use of the word, referring only to nations sharing "our tradition." Consider the significance of these words in Palko and Roe, discussed supra at notes 113-119.
140. Palko v. Connecticut, 302 U.S. 319, 325 (1937) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
141. Id.
142. 521 U.S. 702, 721 (1997).
143. Lawrence, 539 U.S. at 598 (Scalia, J., dissenting) (first emphasis added).
144. Id. at 579 (majority opinion).
145. Atkins v. Virginia, 536 U.S. 304, 312-13 (2002).
146. Lawrence, 539 U.S. at 598.
147. Id. (citing Foster v. Florida, 537 U.S. 990, 990 n.* (2002) (Thomas, J., concurring in denial of certiorari)).
148. See supra note 5 and accompanying text.
149. Atkins, 536 U.S. at316 n.21.
150. 521 U.S. 898 (1997).
151. Id. at 905.
152. Id. at 921 n.11.
153. Id. ("The fact is that our federalism is not Europe's.").
154. Id. at 977 (Breyer, J., dissenting).
155. Id.
156. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
157. See Lawrence v. Texas, 539 U.S. 558, 571 (2003) ("Our obligation is to define the liberty of all, not to mandate our own moral code."); Atkins v. Virginia, 536 U.S. 304, 312-13 (2002) ("Thus, in cases involving a consensus, our own judgment is 'brought to bear' by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.").
158. U.S. CONST, art. I, § 8, cl. 8.
159. Copyright Act of 1976,17 U.S.C. §302(a) (2006).
160. Query whether such a use of foreign law results in a determination of constitutional meaning cognizable by an understanding of original intent. See Reaffirmation of American Independence Resolution, supra note 5.
161. Eldred v. Ashcroft, 537 U.S. 186, 205 (2003).
162. Id. at 206 (quoting Shira Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and the Useful Arts, 36 LOY. L.A. L. REV. 323, 330 (2003)) (alterations in original).
163. Id. at 257 (Breyer, J., dissenting).
164. Id. at 223-27 (Breyer, J., dissenting);
165. id. at 242-43 (Stevens, J., dissenting).
166. Cases involving foreign relations, the war on terrorism, or international law are not examined here because they are not fairly termed "domestic disputes." C.f. Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (discussing the legality of indefinite detention of a U.S. citizen pursuant to the war on terrorism);
167. Rasul v. Bush, 542 U.S. 466 (2004) (facing the question of jurisdiction over the claims of foreign nationals held at Guantanamo Bay);
168. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (touching on the Alien Tort Claims Act);
169. and Olympic Airways v. Husain, 540 U.S. 644 (2004) (construing the Warsaw Convention in regards to airliner liability for a passenger's death). It is logical, under standard precepts, that foreign or international law would arise in such matters. In the domestic cases examined in this Article, on the other hand, standard precepts are disturbed by the Court's citation of international and foreign laws.
170. See Statute of the International Court of Justice, art. 38, 59 Stat. 1055 (1945), available at http://www.icj-cij.org/icjwww/ ibasicdocuments/ibasictext/ibasicstatute.htm.
171. See The Paquete Habana, 175 U.S. 677, 700 (1900).
172. This statement holds true in 99% of cases, although some international law, such as that derived from general principles of law common to civilized countries could emanate from a provision of the U.S. Constitution common to many major constitutions.
173. This is an area for future research, as an examination of judicial interpretations of all areas of constitutional text (e.g., evolving standards of decency in relation to "cruel and unusual punishment") is beyond the scope of this Article.
174. U.S. CONST, art. I, § 3, cl. 1.
175. U.S. CONST, amend. XV, §1.
176. Trop v. Dulles, 356 U.S. 86, 101 (1958).
177. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
178. Id.
179. Hurtado v. California, 110 U.S. 516, 531 (1884).
180. Bank of Columbia v. Okely, 17 U.S. 235, 243 (1819) ("[T]he good sense of mankind has at length settled down to this: that [the words of the Magna Charta] were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.").
181. See supra Part I.A.
182. See supra Part I.B.
183. See Richard Posner, No Thanks, We Already Have Our Own Laws: The Court Should Never View a Foreign Legal Decision as a Precedent in Any Way, LEGAL AFF., July-Aug. 2004, at 40, available at http://www.legalaffairs.org/printerfriendly.msp?id=589. Not even Justice Scalia alleges that the Court has treated foreign law as binding precedent, but foreign law could nonetheless be treated as having some precedential authority on the basis of a status accorded to the foreign court that decided the case. If this were the case, the situation would be analogous to a federal court of appeals weighing the decision of another circuit. If foreign law is cited merely because of its persuasiveness, however, and not its precedential value, this does not necessarily mean that we are then in that most inconsequential realm that Professor Yoo calls an ornamental use of foreign law. If the Court gives the foreign source the weight of a law review article or a treatise, it does not follow that the citation is merely ornamental even if the citation does not single-handedly change the outcome of the case. While an ornamental citation is mere window dressing, a way of indicating broader agreement with the Court's independent conclusion, a persuasiveness citation indicates that the source in question provided the Court with actual guidance in reaching its conclusion, even if the conclusion could not have been reached on the basis of the citation alone. In such a case, the relevant question is whether the foreign source was cited because of the independent value and persuasiveness of its reasoning, or because of a special status afforded by our Supreme Court to the foreign court rendering the decision or to the foreign body of law itself.
184. I do not mean to enter into the many variations on this theme (for example, to go on to list all the possible permutations of this category, or to explore the fact that the Supreme Court can overrule itself). The point is merely to delineate a category of precedent that is taken extremely seriously and will in all but the most exceptional cases be followed to the letter.
185. Namely, to help determine whether (1) a given practice is unusual, or contravenes evolving standards of decency and human dignity, and (2) whether it contravenes a fundamental principle of justice rooted in our traditions or right without which a "fair and enlightened system of justice" could not exist.
186. The amount of authority possessed by a source might determine the array of uses to which that source may be put in an opinion. Authority may, however, be constrained by pre-established usages. And the use to which a source is put does reveal, at least for the purposes of the case under consideration, the level of authority granted to that source. A binding precedent can hardly be invoked by way of example in a case. It must be invoked as controlling authority and then may also be invoked as an example. A source invoked for the comparative purpose of proving an example of how another legal system has handled the issue under consideration by the court need not be given any authority whatsoever.
187. S. AFR. CONST. 1996, ch. 2, §39(1). Also of note along these lines, although more responsive to the legislative context are sections 232-233 which state that customary international law "is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament" id. ch. 14, § 232, and instructing courts to "prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation." Id. § 233.
188. With 243 articles, the South African Constitution is far more specific than ours. And from its age of just ten years, it follows that its text could explicitly take stock of conditions of recent import, such as the growing importance of international human rights and the advent of judicial globalization. If such conditions are to register in the U.S. Constitution, judicial interpretation is needed.
189. Roper v. Simmons, 543 U.S. 551, 578 (2005).
190. John Yoo suggests the possibility that the references to foreign decisions are merely ornamental - that is, used by the Justices "merely to illuminate or decorate their opinions." Yoo, supra note 6, at 385.
191. Trop v. Dulles, 356 U.S. 85, 100 (1958).
192. Printz v. United States, 521 U.S. 898, 977 (1997) (Breyer, J., dissenting).
193. See discussion of Palko v. Connecticut, supra notes 113-119.
194. Roger P. Alford's concern that "a robust use of international sources could have the unintended consequence of undermining rather than promoting numerous constitutional guarantees" seems politically savvy, for the foreign source doctrine could indeed be hijacked by conservative judges; however, this is unlikely given the disdain for which many social conservatives hold world opinion. Furthermore, his concern is not doctrinally well-placed because of the impropriety of comparing down. See Alford, supra note 6, at 58.
195. Michael D. Ramsey challenges what he sees as a selective form of comparative law. Michael D. Ramsey, International Materials and Domestic Rights: Reflections on Atkins and Lawrence, 98 AM. J. INT'L L. 69, 70 (2004).
196. See Infoplease.com, Capital Punishment: Here & Abroad, http://www.infoplease.com/spot/deathworld1.html (last visited Feb. 17, 2007).
197. See SodomyLaws.org, Hate Crimes: Like the Taliban, America's Middle East Allies Tyrannize Gays and Women, http://www.sodomylaws.org/world/ afghanistan/afnews006.htm (last visited Feb. 17, 2007).
198. Posner, supra note 169, at 42.
199. See supra note 5 and accompanying text.
200. Scott v. Sandford, 60 U.S. (19 How.) 393, 426 (1857).
201. See supra Part I.
202. See Richard Davies Parker, The Past of Constitutional Theory - And Its Future, 42 OHIO ST. L.J. 223, 225 (1981) ("[C]onstitutional order is seen as transcending - disembodied from - the clash of wills and movement of passions that characterize day-to-day political life. It may then be enforced on political life to discipline those wills and passions.").
203. Harold Hongju Koh, International Law as Part of Our Law, 98 AM. J. INT'L L. 43, 52 (2004).
204. Id.
205. See PAUL BREST, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 31-43 (1975).
206. Parker, supra note 188, at 228 (discussing JOHN HART ELY, DEMOCRACY AND DISTRUST (1980)).
207. Id. at 231.
208. ELY, supra note 192, at 63-69
209. (as cited in Parker, supra note 188, at 231).
210. Lawrence v. Texas, 539 U.S. 558, 602 (Scalia, J., dissenting).
211. See Parker, supra note 188, at 231.
212. Id., at 232.
213. Cf. LAWRENCE H. TRIBE, CONSTITUTIONAL CHOICES 17 (1985) ("The crux of any determination that a law unjustly discriminates against a group - blacks or women or even men - is not that the law emerges from a flawed process or that the burden it imposes affects an independently fundamental right, but that the law is part of a pattern that denies those subject to it a meaningful opportunity to realize their humanity.").
214. Parker, supra note 188, at 232.
215. See Atkins v. Virginia, 536 U.S. 304, 321 (2002) ("We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty.").
216. See Lawrence, 539 U.S. at 597 (Scalia, J., dissenting).
217. See supra note 5 and accompanying text.
218. Antonin Scalia & Stephen Breyer, Assoc. Justices of the U.S. Supreme Court, Debate on Foreign Law at U.S. Association of Constitutional Law meeting at American University (Jan. 13, 2005), available at http://www. freerepublic.com/focus/f-news/1352357/posts.
219. Id.
220. See Mears, supra note 4.
221. William H. Rehnquist, Chief Justice of the U.S. Supreme Court, Constitutional Courts-Comparative Remarks (1989),
222. reprinted in GERMANY AND ITS BASIC LAW: PAST, PRESENT AND FUTURE - A GERMAN-AMERICAN SYMPOSIUM 411, 412 (Paul Kirchhof & Donald P. Kommers eds., 1993).
223. See Sandra Day O'Connor, Assoc. Justice of the U.S. Supreme Court, Keynote Address Before the Ninety-Sixth Annual Meeting of the American Society of International Law, in 96 AM. SOC'Y INT'L L. PROC. 348, 350 (2002) (opining that "[w]hile ultimately we must bear responsibility for interpreting our own laws, there is much to learn from other distinguished jurists who have given thought to the same difficult issues that we face here.").
224. Stephen Breyer, Assoc. Justice of the U.S. Supreme Court, The Supreme Court and the New International Law, Address Before the Ninety-Seventh Annual Meeting of the American Society of International Law (2003), available at http://www.humanrightsfirst.org/us_law/inthecourts/ Supreme_Court_New_Interl_Law_Just_Breyer%20.pdf.
225. Id. at 1
226. ("[C]omparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups.") (quoting Ruth Bader Ginsburg, Affirmative Action as an International Human Rights Dialogue, 18 BROOKINGS REV. 2, 3 (2000)).
227. Id. at 2.
228. Id. ("This change reflects the 'globalization' of human rights, a phrase that refers to the ever-stronger consensus (now near world-wide) as to the importance of protecting basic human rights, the embodiment of that consensus in legal documents, such as national constitutions and international treaties, and the related decision to enlist judges - i.e., independent judiciaries - as instruments to help make that protection effective in practice").
229. See Justice Sandra Day O'Connor, Remarks at the Southern Center for International Studies, (Oct. 28, 2003), available at http://www.southerncenter.org/OConnor_transcript.pdf, at 2 (commenting that "[w]hen U. S. courts are seen to be cognizant of other judicial systems, our ability to act as a rule-of-law model for other nations will be enhanced.").
230. See Ruth Bader Ginsburg, Assoc. Justice of the U.S. Supreme Court, Looking Beyond Our Borders: The Value of Comparative Perspective in Constitutional Adjudication, Sherman J. Bellwood Lecture (Sept. 18, 2003), in 40 IDAHO L. REV. 1, 2 (2003).
231. ("The 1776 Declaration of Independence . . . expressed concern about the opinions of other peoples . . . out of 'a decent Respect to the Opinions of Mankind.'");
232. id. at 8 ("[O]ur 'island' or 'lone ranger' mentality is beginning to change.");
233. id. at 10-11 ("I . . . believe we will continue to accord 'a decent Respect to the Opinions of [Human]kind' as a matter of comity and in a spirit of humility.").
234. Breyer, supra note 207, at 1.
235. Id. ("[C]omparative use of foreign constitutional decisions will not lead us blindly to follow the foreign court. As 1 have said before - '[o]f course, we are interpreting our own Constitution, not those of other nations, and there may be relevant political and structural differences between their systems and our own. But their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem.'").
236. O'Connor, supra note 206, at 351. Strangely, she followed this up with a doctrinally incorrect statement regarding the relevance of foreign practice to the Court's Eighth Amendment jurisprudence that would point in the opposite direction from her prediction.
237. Id. ("Until now, however, we have always held that when interpreting the meaning of cruel and unusual punishment, under the Eighth Amendment, only national norms are relevant"). This is patently incorrect, at least as a descriptive assessment.
238. See supra Part I.
239. See supra note 5 and accompanying text.
240. See Notice of Hearing on Feeney/Goodlatte Resolution, http://www.judiciary.house.gov/legacy/news0324.htm (last visited Feb. 18, 2007).
241. See 537 U.S. 186, 205-206 (2003) (explaining how Congress intended the Act to give American authors the same level of copyright protection afforded to European authors and to avoid competitive disadvantages vis-à-vis foreign rightholders. This case deals with the unification and standardization of intellectual property law for the purposes of international trade and commerce, but what is significant for our purposes is that the Justices looked to foreign law only to the degree Congress, through the vehicle of legislative history, had instructed them to do so).
242. U.S. CONST, art. I, § 8, cl. 8 ("The Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries").
243. See also supra Part II.C.
244. Curry, supra note 2.
245. Id.
246. See Powell, supra note 95
247. See Koh, supra note 87.
248. See TRIBE, supra note 197, at 268 ("We must make choices but must renounce the equally illusory freedom to choose however we might wish to choose. For it is a Constitution . . . in whose terms we are, after all, choosing. And that is the paradox, the mystery, of the struggle we cannot avoid if it is the Constitution, and not solely our own priorities, that we would choose to follow . . . .").