International consensus as persuasive authority in the eighth amendment

University of Pennsylvania Law Review

Volumn 156, Issue 1, 2007, Pages 63-120

  Lee, Youngjae ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 38049151154     PISSN: 00419907     EISSN: None     Source Type: Journal    
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References (275)

1. The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII.
2. 543 U.S. 551 (2005).
3. See, e.g., Roger P. Afford, Roper v. Simmons and Our Constitution in International Equipoise, 53 UCLA L. REV. 1 (2005);
4. Steven G. Calabresi & Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 WM. & MARY L. REV. 743 (2005);
5. Sarah H. Cleveland, Our International Constitution, 31 YALE J. INT'L L. 1, 77-80 (2006);
6. Robert J. Delahunty & John Yoo, Against Foreign Law, 29 HARV. J.L. & PUB. POL'Y 291 (2005) ;
7. Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 HARV. L. REV. 109 (2005);
8. Jeremy Waldron, Foreign Law and the Modern Ius Gentium, 119 HARV. L. REV. 129 (2005);
9. Melissa A. Waters, Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, 93 GEO. L.J. 487 (2005);
10. Ernest A. Young, Foreign Law and the Denominator Problem, 119 HARV. L. REV. 148 (2005).
11. See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 868 n.4 (1988) (Scalia, J., dissenting) ("The plurality's reliance upon Amnesty International's account of what it pronounces to be civilized standards of decency in other countries . . . is totally inappropriate as a means of establishing the fundamental beliefs of this Nation. . . . We must never forget that it is a Constitution for the United States of America that we are expounding."); MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 145-70 (1991).
12. 539 U.S. 558, 576-77 (2003).
13. 536 U.S. 304, 316 n.21 (2002).
14. See, e.g., Roper, 543 U.S. at 604-05 (O'Connor, J., dissenting); Lawrence, 539 U.S. at 598 (Scalia, J., dissenting); Foster v. Florida, 537 U.S. 990, 990 (2002) (Thomas, J., concurring in denial of certiorari); Atkins, 536 U.S at 324-25 (Rehnquist, C.J., dissenting).
15. See, e.g., Ruth Bader Ginsburg, Assoc. Justice, U.S. Supreme Court, "A Decent Respect to the Opinions of [Human] kind": The Value of a Comparative Perspective in Constitutional Adjudication, Keynote Address Before the Ninety-Ninth Annual Meeting of the American Society of International Law (Apr. 1, 2005), in 99 AM. SOC'Y INT'L L. PROC. 351 (2005);
16. Sandra Day O'Connor, Asso. Justice, U.S. Supreme Court, Keynote Address Before the Proceedings of the Ninety-Sixth Annual Meeting of the American Society of International Law (Mar. 16, 2002), in 96 AM. SOC'Y INT'L L. PROC. 348 (2002);
17. The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation Between Justice Antonin Scalia and Justice Stephen Breyer, 3 INT'L J. CONST. L. 519 (2005) [hereinafter Scalia-Breyer Conversation];
18. Antonin Scalia, Assoc. Justice, U.S. Supreme Court, Foreign Legal Authority in the Federal Courts, Keynote Address Before the Ninety-Eighth Annual Meeting of the American Society of International Law (Apr. 2, 2004), in 98 AM. SOC'Y INT'L L. PROC. 305 (2004).
19. Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 199-201, 292-93 (2005).
20. Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States Before the S. Comm. On the Judiciary, 109th Cong. 370-71, 470-72 (2005).
21. See, e.g., H.R. Res. 97, 109th Cong. (2005); S. Res. 92, 109th Cong. (2005).
22. See sources cited supra note 3; see also Matthew D. Adler, Commentary, Can Constitutional Borrowing Be Justified?: A Comment on Tushnet, 1 U. PA. J. CONST. L. 350 (1998);
23. Roger P. Alford, In Search of a Theory for Constitutional Comparativism, 52 UCLA L. REV. 639 (2005);
24. Diane Marie Amann, "Raise the Flag and Let It Talk": On the Use of External Norms in Constitutional Decisionmaking, 2 INT'L. J. CONST. L. 597 (2004);
25. Steven G. Calabresi, "A Shining City on a Hill": American Exceptionalism and the Supreme Court's Practice of Relying on Foreign Law, 86 B.U. L. REV. 1335 (2006);
26. Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 IND. L.J. 819 (1999);
27. Martin S. Flaherty, Separation of Powers in a Global Context, in JUDGES, TRANSITION, AND HUMAN RIGHTS CULTURES: ESSAYS IN HONOUR OF STEPHEN LIVINGSTON (John Morrison & Colin Harvey, eds., forthcoming 2006);
28. David Fontana, Refined Comparativism in Constitutional Law, 49 UCLA L. REV. 539 (2001);
29. Sarah K. Harding, Comparative Reasoning and Judicial Review, 28 YALE J. INT'L L. 409 (2003);
30. Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 AM. J. COMP. L. 125 (2005);
31. Vicki C. Jackson, Transnational Discourse, Relational Authority, and the U.S. Court: Gender Equality, 37 LOY. L.A. L. REV. 271 (2003);
32. Harold Hongju Koh, International Law as Part of Our Law, 98 AM. J. INT'L L. 43 (2004);
33. Joan L. Larsen, Importing Constitutional Norms from a "Wider Civilization": Lawrence and the Rehnquist Court's Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 OHIO ST. L.J. 1283 (2004);
34. Sanford Levinson, Looking Abroad When Interpreting the U.S. Constitution: Some Reflections, 39 TEX. INT'L L.J. 353 (2004);
35. Gerald L. Neuman, The Uses of International Law in Constitutional Interpretation, 98 AM. J. INT'L L. 82 (2004) ;
36. Eric A. Posner & Cass R. Sunstein, The Law of Other States, 59 STAN. L. REV. 131 (2006);
37. M. J. INT'L L. 69 (2004);
38. Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 YALE L.J. 1564 (2006);
39. Carlos F. Ronsenkrantz, Against Borrowings and Other Nonauthoritative Uses of Foreign Law, 1 INT'L J. CONST. L. 269 (2003);
40. Cheryl Saunders, The Use and Misuse of Comparative Constitutional Law, 13 IND. J. GLOBAL LEGAL STUD. 37 (2006);
41. Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225 (1999);
42. Mark Tushnet, When Is Knowing Less Better Than Knowing More?, 90 MINN. L. REV. 1275 (2006) [hereinafter Tushnet, Knowing Less];
43. Richard Posner, No Thanks, We Already Have Our Own Laws, LEGAL AFF., July-Aug. 2004, at 40.
44. See Calabresi & Zimdahl, supra note 3, at 756; Cleveland, supra note 3.
45. See ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 65-103 (2004);
46. Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L. 1103 (2000).
47. Compare, e.g., Young, supra note 3, at 151-56 (criticizing the Court for treating foreign legal sources as "authoritative," despite its assertions to the contrary), with Tushnet, Knowing Less, supra note 12, at 1286-87 (dismissing sovereignty concerns).
48. 543 U.S. 551,575 (2005).
49. In evidence law, because of the flexibility of the term "relevance," the concept of "probative value" is used to give "relevance" more shape. See FED. R. EVID. 401, 403 (defining "relevant evidence" as that having the tendency to make any consequential fact "more probable or less probable" but allowing its exclusion if its "probative value" is outweighed by prejudice).
50. For an example arguing against the "binding" view, see Posner, supra note 12, at 42 ("I think most Americans would think it outrageous that Zimbabwean judges, however distinguished they may be, were making law for us."). Justice Ginsburg, on the other hand, has defended the "relevant" view: Judges in the United States are free to consult all manner of commentary, restatements, treatises, what law professors or even law students write copiously in law reviews, for example. If we can consult those writings, why not the analysis of a question similar to the one we confront contained in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights? Ginsburg, supra note 8, at 354.
51. See Larsen, supra note 12, at 1289-91 (arguing that "empirical" uses of comparative and international law are unproblematic).
52. We have moved far beyond the point at which we believe that the Eighth Amendment bans only concrete historical practices that were considered "cruel and unusual" at the time of the Amendment's ratification. It is far more plausible, and far less radical, to read the Eighth Amendment as "draw[ing] its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958). As to the cost-effectiveness argument, as Judge Posner once remarked in an article defending the use of economics in interpreting the Constitution, "the Eighth Amendment has no clear economic interpretation." Richard A. Posner, The Constitution as an Economic Document, 56 GEO. WASH. L. REV. 4, 38 (1987).
53. The reasoning for such an argument is that [t]o decide whether a particular punishment is "unusual" necessitates comparison of the particular facts at issue to some generalized practice. . . . [W]hat is the appropriate frame of reference for the comparison? Ought the referent be juries in a particular locality, states in the federal union or the community of nations? . . . Although [this] question commands no obvious answer, the broadest framework, the world community, is as logical as any other. Joan F. Hartman, "Unusual" Punishment: The Domestic Effects of International Norms Restricting the Application of the Death Penally, 52 U. CIN. L. REV. 655, 688 (1983) (footnote omitted);
54. see also Harold Hongju Koh, The Supreme Court Meets International Law, 12 TULSA J. COMP. & INT'L L. 1, 9 (2004) ("[I]f we are the only country that executes persons with mental retardation[,] that practice is unusual. And remember, the 8th Amendment to the United States Constitution specifically bans 'cruel and unusual punishments.'"). The phrase "evolving standards of decency" has inspired similar arguments. Justice Blackmun, for instance, once wrote, "If the substance of the Eighth Amendment is to turn on the 'evolving standards of decency' of the civilized world, there can be no justification for limiting judicial inquiry to the opinions of the United States."
55. Harry A. Blackmun, The Supreme Court and the Law of Nations, 104 YALE L.J. 39, 48 (1994).
56. Various Supreme Court Justices, while quick to deny that foreign authorities are binding, have defended the practice on the grounds that foreign sources can be helpful, instructive, or persuasive. In Roper, for instance, Justice Kennedy stressed that the foreign practices he was citing in his opinion were "not . . . controlling" and insisted that "the task of interpreting the Eighth Amendment remains our responsibility." Roper v. Simmons, 543 U.S. 551, 575 (2005). He further stated that the "opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." Id. at 578. Justice Ginsburg, too, stated in a speech that "[f]oreign opinions are not authoritative" and that "they set no binding precedent for the U.S. judge." Ginsburg, supra note 8, at 353. Rather, the reason to look at foreign sources, Justice Ginsburg added, is "to learn what we can from the experience and good thinking foreign sources may convey." Id. Similarly, Justice O'Connor stated that "[a]lthough international law and the law of other nations are rarely binding upon our decisions in U.S. courts, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts." O'Connor, supra note 8, at 350. Finally, Justice Breyer, although he is the most vocal member of the Court on this debate, has stated repeatedly that foreign authorities are not "binding" or "controlling" but "helpful." Scalia-Breyer Conversation, supra note 8, at 524, 528.
57. Although there is an analytic distinction to be made between "binding" and "constitutive," treating foreign legal materials as constitutive does not look much different from treating them as binding authority as far as the judicial borrowing debate is concerned. Compare the following propositions. Proposition 1: Penal practice p is cruel and unusual if it is the case that foreign authorities a have decided, in manner m, that penal practice p is not permitted. Proposition 2: Penal practice p is 'cruel and unusual' if it is the case that foreign authorities a have decided, in manner m, that penal practice p is not permitted, and this is so because that would make penal practice p unusual' in the sense of rare or uncommon. In the first proposition, foreign authorities are binding; in the second, they are constitutive. If the worry with the first proposition is that it undermines our sovereignty, the same worry should apply to the second proposition. Therefore, from the sovereigntists' perspective, there is no meaningful difference between binding and constitutive. For an argument along these lines, see Young, supra note 3, at 155-56.
58. See, e.g., Tushnet, Knowing Less, supra note 12, at 1278.
59. Id.
60. Roper, 543 U.S. at 575.
61. Cf. NICHOLAS RESCHER, PLURALISM: AGAINST THE DEMAND FOR CONSENSUS 6 (1993) ("The belief that consensus plays a leading role in matters of rational inquiry, decision, and evaluation is among the oldest and most pervasive ideas of philosophy."); id. at 21-28 (surveying "philosophical partisans of cognitive consensus").
62. Cf. DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (1997) (scrutinizing the concept of the rule of law and its ideological implications).
63. I say "accordingly" because to the extent that the current controversy over foreign legal materials stems from the Court's practice in cases like Roper and Atkins, any defense or criticism of the practice of citing foreign laws should start with the actual practice, not with an idealized version that bears little resemblance to reality. See also infra Part IV.
64. See Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 VA. L. REV. 677, 687-99 (2005).
65. See, e.g., Stephen J. Schulhofer, Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predator Laws, 7 J. CONTEMP. LEGAL ISSUES 69, 83 (1996) ("[The] just-deserts limit governs Eighth Amendment proportionality jurisprudence (in death cases, at any rate) . . . .");
66. Carol S. Steiker, No, Capital Punishment Is Not Morally Required: Deterrence, Deontology, and the Death Penalty, 58 STAN. L. REV. 751, 765 n.44 (2005) (arguing that the principle that "proportionality is a constraint on just punishment" is "deeply embedded in American law and society" and "has been repeatedly invoked by the Supreme Court for nearly a century as the bedrock of its Eighth Amendment jurisprudence").
67. The literature on the Eighth Amendment is enormous. For a sampling of different approaches, see, for example, Laurence Claus, The Antidiscrimination Eighth Amendment, 28 HARV. J.L. & PUB. POL'Y 119 (2004);
68. Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: "Proportionality" Relative to What?, 89 MINN. L. REV. 571 (2005);
69. Margaret Jane Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. PA. L. REV. 989 (1978);
70. Alice Ristroph, Proportionality As a Principle of Limited Government, 55 DUKE L.J. 263 (2005);
71. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 40 (Amy Gutmann ed., 1997);
72. Antonin Scalia, Response, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW, supra, at 129, 145-47;
73. Malcolm E. Wheeler, Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment, 24 STAN. L. REV. 838 (1972).
74. The phrase is borrowed from Cass Sunstein's work. See, e.g., CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (1999) [hereinafter SUNSTEIN, ONE CASE AT A TIME];
75. CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT 171-82 (1996) [hereinafter SUNSTEIN, LEGAL REASONING].
76. See Roper v. Simmons, 543 U.S. 551, 564-67 (2005); Atkins v. Virginia, 536 U.S. 304, 313-17 (2002); Stanford v. Kentucky, 492 U.S. 361, 370-77, 380 (1989) (plurality opinion); Thompson v. Oklahoma, 487 U.S. 815, 823-33 (1988) (plurality opinion); Tison v. Arizona, 481 U.S. 137, 152-55 (1987); Enmund v. Florida, 458 U.S. 782, 789-96 (1982); Coker v. Georgia, 433 U.S. 584, 593-97 (1976) (plurality opinion).
77. See Roper, 543 U.S. at 568-75; Atkins, 536 U.S. at 317-21; Thompson, 487 U.S. at 833-38; Tison, 481 U.S. at 155-58; Enmund, 458 U.S. at 797-801; Coker, 433 U.S. at 597-600. But see Stanford, 492 U.S. at 379-80 (rejecting the "proportionality" analysis).
78. See Roper, 543 U.S. at 564 (comparing the evidence of national consensus with that presented in Atkins).
79. Id. at 572.
80. Id. at 575.
81. Id. at 576.
82. Id. at 577.
83. Coker v. Georgia, 433 U.S. 584, 596 n.10 (1976) (plurality opinion).
84. Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982).
85. 487 U.S. 815, 830 (1988).
86. Id. at 830-31.
87. Id. at 831 & n.34.
88. Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).
89. For a similar distinction, see Larsen, supra note 12, at 1291-97 (distinguishing between "reason-borrowing" and "moral fact-finding") and Young, supra note 3, at 153-56 (using the terms "persuasive authority" and "nose-counting authority").
90. Young, supra note 3, at 149-56.
91. E.g. Estelle v. Gamble, 429 U.S. 97, 101-06 (1976); Gregg v. Georgia, 428 U.S. 153, 170-71 (1976) (plurality opinion); In re Kemmler, 136 U.S. 436, 446-47 (1890); Wilkerson v. Utah, 99 U.S. 130, 135-36 (1878).
92. See Lee, supra note 30, at 699-700.
93. See sources cited supra note 32.
94. Lee, supra note 30.
95. See, e.g., Schulhofer, supra note 31, at 82-83; Steiker, supra note 31, at 765-69.
96. Coker v. Georgia, 433 U.S. 584, 593-600 (1977) (plurality opinion).
97. Enmund v. Florida, 458 U.S. 781, 789-801 (1982).
98. Atkins v. Virginia, 536 U.S. 304, 313-21 (2002).
99. Roper v. Simmons, 543 U.S. 551, 564-79 (2005).
100. JOEL FEINBERG, Justice and Personal Desert, in DOING AND DESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY 55, 61 (1970).
101. Id. at 81-82.
102. See JOEL FEINBERG, The Expressive Function of Punishment, in DOING AND DESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY, supra note 58, at 95, 118;
103. see also R.A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 132-35 (2001);
104. ANDREW VON HIRSCH, CENSURE AND SANCTIONS 15-17 (1993).
105. Roper, 543 U.S. at 575.
106. See FEINBERG, supra note 60, at 100 ("To say that the very physical treatment itself expresses condemnation is to say simply that certain forms of hard treatment have become the conventional symbols of public reprobation. . . . Moreover, particular kinds of punishment are often used to express quite specific attitudes . . . ; note the differences, for example, between beheading a nobleman and hanging a yeoman, burning a heretic and hanging a traitor, hanging an enemy soldier and executing him by firing squad."); id. at 114 ("Even floggings and imposed fastings do not constitute punishments, then, where social conventions are such that they do not express public censure . . . .").
107. For an argument along these lines, see Robert Blecker, A Poster Child for Us, 89 JUDICATURE 297, 299-301 (2006).
108. Where childhood ends and adulthood begins is not an easy question. The inconclusive nature of Article 1 of the Convention on the Rights of the Child, which defines a "child" as "every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier," reflects the difficulty of the line-drawing problem in this area. Convention on the Rights of the Child art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3 (emphasis added); see also Thomas Hammarberg, Justice for Children Through the UN Convention, in JUSTICE FOR CHILDREN 59, 64 (Stewart Asquith & Malcolm Hill eds., 1994) ("Obviously, this wording [of Article 1] is the result of a compromise.").
109. For some discussions of complexities of this issue, see FRANKLIN E. ZIMRING, AMERICAN JUVENILE JUSTICE 17-22 (2005);
110. Elizabeth S. Scott, The Legal Construction of Adolescence, 29 HOFSTRA L. REV. 547 (2000);
111. see also Anthony N. Doob and Michael Tonry, Varieties of Youth Justice, in YOUTH CRIME AND YOUTH JUSTICE: COMPARATIVE AND CROSS-NATIONAL PERSPECTIVES 1, 5-10 (Michael Tonry & Anthony N. Doob eds., 2004) ;
112. Jeffrey Fagan, Atkins, Adolescence, and the Maturity Heuristic: Rationales for a Categorical Exemption for Juveniles from Capital Punishment, 33 N.M. L. REV. 207, 223-25, 248-52 (2003);
113. Barry C. Feld, Competence, Culpability, and Punishment: Implications of Atkins for Executing and Sentencing Adolescents, 32 HOFSTRA L. REV. 463, 545-52 (2003);
114. Elizabeth S. Scott & Laurence Steinberg, Blaming Youth, 81 TEX. L. REV. 799 (2003).
115. See ROGER HOOD, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 252 (3d ed. 2002) (listing countries that, as of December 2001, have abolished the death penalty for ordinary crimes but retained them for exceptional crimes); id. at 35 (discussing Israel's retention of the death penalty "for all crimes except those connected with the Holocaust"); id. at 49-50 (discussing India's "'rarest of the rare' cases principle" (quoting Singh v. Punjab, (1980) 2 S.C.J. 475, 524));
116. see also Julia Eckert, Death and the Nation: State Killing in India, in THE CULTURAL LIVES OF CAPITAL PUNISHMENT: COMPARATIVE PERSPECTIVES 195, 195-97 (Austin Sarat & Christian Boulanger eds., 2005) (discussing death sentences for crimes involving Muslim terrorism, caste violence, and Hindu nationalism).
117. See HOOD, supra note 65, at 249-52 (listing countries that have completely abolished capital punishment). It is beyond the scope of this Article to survey the history of abolition of the death penalty worldwide and explore individual countries' reasons for abolition, but even a quick glance shows a variety of rationales behind the abolitionist movement. See id. at 26-27 (reporting that "[m]ost West European nations have come to recognize that. . . capital punishment inflicted by the state is contrary to their commitment to maintain human rights" and mentioning as examples Switzerland, which thought the death penalty to be "a flagrant violation of the right to life and dignity"; Spain, which believed the death penalty to be "degrading"; and Greece, which declared human life to be "of supreme value" and stated that "efficiency of the death penalty has been proven non-existent"); see also S v Makwanyane & Another 1995 (2) SACR 1 (CC) at 52-53, 115 (S. Afr.) (citing both the "rights to life and dignity" and the spirit of reconciliation (as opposed to revenge) behind the constitution as reasons for holding the death penalty unconstitutional); RICHARD J. EVANS, RITUALS OF RETRIBUTION: CAPITAL PUNISHMENT IN GERMANY 1600-1987, at 775-804, 855-71 (1996) (examining the death penalty abolition movement in East and West Germany);
118. Shai J. Lavi, Imagining the Death Penalty in Israel: Punishment, Violence, Vengeance, and Revenge, in THE CULTURAL LIVES OF CAPITAL PUNISHMENT: COMPARATIVE PERSPECTIVES, supra note 65, at 219, 228 ("Among the primary reasons still given for opposing the death penalty for terrorists is the risk of drawing punishment into a cycle of revenge and of turning terrorists into martyrs.");
119. Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 STAN. L. REV. 703, 746 (2005) ("Israel does not execute terrorists, in part because of a belief that executions of terrorists would breed more terrorism . . . .");
120. Patrick Timmons, Seed of Abolition: Experience and Culture in the Desire To End Capital Punishment in Mexico, 1841-1857, in THE CULTURAL LIVES OF CAPITAL PUNISHMENT: COMPARATIVE PERSPECTIVES, supra note 65, at 69, 74-78 (linking Mexico's attitude to the death penalty with its experience with political repression and its preventive philosophy of punishment);
121. Elizabedi Vicens, Note, Application of the Federal Death Penalty Act to Puerto Rico: A New Test for the Locally Inapplicable Standard, 80 N.Y.U. L. REV. 350, 376, 382-84 (2005) (discussing the Puerto Rican attitude toward the death penalty);
122. cf. JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003) (discussing cultural differences between the United States and Europe as an explanation for differing approaches to state punishment).
123. Cf. HOOD, supra note 65, at 26 (reporting that Spain "took the view" in 1995 that the death penalty is "contrary to the philosophy of punishment enshrined in our Constitution, where punishment is seen as a means of rehabilitation").
124. See Stephanos Bibas, Regulating Local Variations in Sentencing, 58 STAN. L. REV. 137, 139-41 (2005) (distinguishing between legitimate and illegitimate regional variations in federal criminal sentencing);
125. Frank Bowman et al., Panel II: The Effects of Region, Circuit, Caseload and Prosecutorial Policies on Disparity, 15 FED. SENT'G REP. 165, 165 (2003);
126. John Gleeson, Supervising Federal Capital Punishment: Why the Attorney General Should Defer When U.S. Attorneys Recommend Against the Death Penalty, 89 VA. L. REV. 1697 (2003);
127. Katherine Tang Newburger, Caseload Matters: Caseload Composition as an Explanation for Regional Sentencing Differences, 15 FED. SENT'G REP. 197, 197 (2003);
128. Ian Weinstein, The Historical Roots of Regional Sentencing Variation, 11 ROGER WILLIAMS U. L. REV. 495, 495 (2006) ("[P]erhaps we should respect a modicum of regional variation and not seek to eliminate every vestige of regional legal culture in America.").
129. Roper v. Simmons, 543 U.S. 551, 575, 577 (2004).
130. Coker v. Georgia, 433 U.S. 584, 596 n.10 (1976).
131. Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982).
132. Roper, 543 U.S. at 576.
133. For a useful summary, see Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J. 1935, 1942-62 (2002).
134. See also JACK L. GOLDSMITH & ERIC POSNER, THE LIMITS OF INTERNATIONAL LAW 107-34 (2005);
135. Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INT'L ORG. 217, 220 (2000).
136. Waldron, supra note 3.
137. Id. at 133; see also H.F. JOLOWICZ & BARRY NICHOLAS, HISTORICAL INTRODUCTION TO THE STUDY OF ROMAN LAW 104-07 (3d ed. 1972).
138. Waldron, supra note 3, at 138.
139. Id. at 143.
140. Id. at 144.
141. Foster v. Florida, 537 U.S. 990, 990 n.* (2002) (Thomas, J., concurring in denial of certiorari).
142. Waldron, supra note 3, at 144.
143. Id. at 137.
144. Id. at 132.
145. Id. at 132-33.
146. Id. at 138.
147. This is not to say that his suggestion has not been embraced by others. For a positive reaction, see Cleveland, supra note 3, at 10-11.
148. I use the phrase "moral and legal knowledge" here because, as Waldron recognizes, the relationship between law and morality in this context is not easy to sort through. See Waldron, supra note 3, at 136 ("Historians of jurisprudence have spent gallons of ink on the question of whether ius gentium was conceived as natural law or positive law. The fact is that . . . it has been both, as well as the product of a sort of reflective equilibrium between the two.").
149. Id. at 138.
150. Id. at 143.
151. At least this is the conventional understanding. See, e.g., LEE SMOLIN, THE TROUBLE WITH PHYSICS: THE RISE OF STRING THEORY, THE FALL OF A SCIENCE, AND WHAT COMES NEXT 289-307 (2006). This is not to say that scientists do not have fundamental disagreements. For an account of the recent controversy over string theory and its relationship to the question of "what science is," see generally SMOLIN, supra.
152. See BERNARD WILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY 136 (1985) ("In a scientific inquiry there should ideally be convergence on an answer, where the best explanation of the convergence involves the idea that the answer represents how things are . . . .");
153. see also Susan Haack, Coherence, Consistency, Cogency, Congruity, Cohesiveness, &c.: Remain Calm! Don't Go Overboard!, 35 NEW LITERARY HIST. 167, 178 (2004) ("[T]he fact that scientists agree on a theory doesn't warrant it; gradually killing off those who don't accept a new scientific idea, or playing a tape repeating 'the earht moves' under the pillows of the holdouts while they sleep, won't make the claim in question any more likely true. No: consensus in the scientific community is epistemologically significant because - by no means always, but on the whole and in the long run, often enough - the strong evidence that warrants the theory also explains scientists' agreement").
154. This is something that Waldron himself has persuasively laid out. Jeremy Waldron, The Irrelevance of Moral Objectivity, in NATURAL LAW THEORY 158, 171-76 (Robert P. George ed., 1992).
155. See RESCHER, supra note 27, at 14 ("From the angle of rationality it will only be a rationally engendered consensus that is significant: and what is significant about it is not its consensuality but its rationality."); WILLIAMS, supra note 90, at 136 ("[E]ven if [ethical convergence] happens, it will not be correct to think it has come about because convergence has been guided by how things actually are . . . ."); Norman Daniels, Wide Reflective Equilibrium and Theory Acceptance in Ethics, 76 J. PHIL. 256, 275 (1979) ("[Some worry that] there may be consensus on moral falsehoods. The worry is clearly reasonable when we suspect that the factors that led to consensus have little, if anything, to do with rational inquiry . . . .").
156. As an example, consider the various forces that led to drafting and ratification of the Convention on the Rights of the Child, discussed in LAWRENCE J. LEBLANC, THE CONVENTION ON THE RIGHTS OF THE CHILD 25-62 (1995). See also sources cited supra note 73.
157. See, e.g., INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, WORKING GROUP I, CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS (J.T. Houghton et al., eds. 2001) [hereinafter CLIMATE CHANGE];
158. PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 357-81 (2d ed. 2003);
159. PATRICIA W. BIRNIE & ALAN E. BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 523-33 (2d ed. 2002);
160. Peter Doran, Cold, Hard Facts, N.Y. TIMES, July 27, 2006, at A25;
161. Gregg Easterbrook, Finally Feeling the Heat, N.Y. TIMES, May 24, 2006, at A27.
162. MICHAEL GRUBB ET AL., THE KYOTO PROTOCOL: A GUIDE AND ASSESSMENT 3-26 (1999).
163. Id. at 27-114.
164. See TIM FLANNERY, THE WEATHER MAKERS: HOW MAN IS CHANGING THE CLIMATE AND WHAT IT MEANS FOR LIFE ON EARTH 238-46 (2005);
165. ELIZABETH KOLBERT, FIELD NOTES FROM A CATASTROPHE: MAN, NATURE, AND CLIMATE CHANGE 159-72 (2006).
166. See KOLBERT, supra note 97, at 141-47.
167. FLANNERY, supra note 97, at 230; KOLBERT, supra note 97, at 155-57. See generally ENVIRONMENTAL ETHICS (Robert Elliot ed., 1995).
168. Waldron, supra note 3, at 143.
169. J.L. MACKIE, ETHICS: INVENTING RIGHT AND WRONG 15-49 (1977).
170. See GILBERT HARMAN, THE NATURE OF MORALITY 3-10 (1977).
171. Compare John McDowell, Projection and Truth in Ethics, in MORAL DISCOURSE AND PRACTICE: SOME PHILOSOPHICAL APPROACHES 215, 222 (Stephen Darwall et al. eds., 1997) (criticizing the view that "natural science has a foundational status in philosophical reflection about truth - that there can be no facts other than those that would figure in a scientific understanding of the world")
172. with Brian Leiter, Objectivity, Morality, and Adjudication, in OBJECTIVITY IN LAW AND MORALS 66, 67, 71-72, 77-78 (Brian Leiter ed., 2001) (defending what he calls the "Naturalistic Conception" of objectivity).
173. Foster v. Florida, 537 U.S. 990, 990 n.* (2002) (Thomas, J., concurring in denial of certiorari).
174. Waldron, supra note 3, at 144.
175. Foster, 537 U.S. at 990 n.*.
176. See, e.g., Kent Roach, Must We Trade Rights for Security? The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and Britain, 27 CARDOZO L. REV. 2151, 2155 (2006) ("The United Kingdom has had much experience with terrorism and is an influential innovator with respect to anti-terrorism laws.");
177. Stephen J. Schulhofer, Checks and Balances in Wartime: American, British, and Israeli Experiences, 102 MICH. L. REV. 1906, 1908 (2004) ("Fighting terrorism poses challenges that are essentially new (or newly recognized) for America. For that reason, it is worth considering the
178. See Jackson, supra note 12, at 320 (discussing the value of "international experience" in dealing with issues raised by the emergence of new technologies); Tushnet, Knowing Less, supra note 12, at 1278 n.9 ("The time may soon come when non-U.S. courts will grapple with novel issues - such as the regulation of genetic engineering - before U.S. courts do. The non-U.S. courts may provide some insights that would be useful when the U.S. courts later consider constitutional issues arising out of the same social phenomena.").
179. 408 U.S. 238 (1972).
180. For more examples of how we make evaluations of various kinds, see Joseph Raz, Notes on Values and Objectivity, in OBJECTIVITY IN LAW AND MORALS, supra note 103, at 194, 223 (discussing humor and music). There is a large philosophical literature on how to make sense of aesthetic judgments.
181. See, e.g., DAVID HUME, Of the Standard of Taste, in ESSAYS, MORAL, POLITICAL, AND LITERARY 226 (Eugene F. Miller ed., Liberty Fund 1985) (1777).
182. For useful overviews, see, for example, John W. Bender, Aesthetic Realism 2, in THE OXFORD HANDBOOK OF AESTHETICS 80 (Jerrold Levinson ed., 2003);
183. Richard Eldridge, Aesthetics and Ethics, in THE OXFORD HANDBOOK OF AESTHETICS, supra, at 722 (Jerrold Levinson ed. 2003);
184. Robert Stecker, Value in Art, in THE OXFORD HANDBOOK OF AESTHETICS, supra, at 307 (Jerrold Levinson ed. 2003);
185. Nick Zangwill, Aesthetic Realism 1, in THE OXFORD HANDBOOK OF AESTHETICS, supra, at 63.
186. Vicki Jackson's suggestion that "constitutional law can be understood as a site of engagement between domestic law and international or foreign legal sources and practices" seems similar to this model. Jackson, supra note 3, at 114; see also Choudhry, supra note 12, at 835-38 (describing what he calls the "dialogical use of comparative legal materials"); Harding, supra note 12, at 424-27 (describing the "dialogic model").
187. The Roper Court had its own answer to this question when it conducted its proportionality analysis. See Roper v. Simmons, 543 U.S. 551, 569-70 (2005) (stating that youth is highly correlated with recklessness, susceptibility to peer pressure, and lack of fixed character). For some general discussions about the issue of culpability of juvenile offenders, see ANDREW VON HIRSCH & ANDREW ASHWORTH, PROPORTIONATE SENTENCING: EXPLORING THE PRINCIPLES 36-41 (2005); ZIMRING, supra note 64, at 49-69, 193-218;
188. Laurence Steinberg & Elizabeth Cauffman, A Developmental Perspective on Jurisdictional Boundary, in THE CHANGING BORDERS OF JUVENILE JUSTICE: TRANSFER OF ADOLESCENTS TO THE CRIMINAL COURT 379, 393-99 (Jeffrey Fagan & Franklin E. Zimring eds., 2000);
189. Fagan, supra note 64, at 207. Cf. Peter Strawson, Freedom and Resentment, 48 PROC. BRIT. ACAD. 1 (1962), reprinted in FREE WILL 72, 88 (Gary Watson ed., 2d ed. 2003).
190. The issue of culpability of juvenile offenders is, of course, connected to the broader issue of culpability generally and the debate between "choice" theorists and "character" theorists. For a representative discussion, see NICOLA LACEY, STATE PUNISHMENT: POLITICAL PRINCIPLES AND COMMUNITY VALUES 58-78 (1988);
191. Peter Arenella, Character, Choice, and Moral Agency: The Relevance of Character to Our Moral Culpability Judgments, in CRIME, CULPABILITY, AND REMEDY 59 (Ellen Frankel Paul et al. eds. 1990);
192. R.A. Duff, Choice, Character, and Criminal Liability, 12 LAW & PHIL. 345 (1993);
193. H.L.A. Hart, Negligence, Mens Rea, and Criminal Responsibility, in PUNISHMENT AND RESPONSIBILITY 136 (1968);
194. Jeremy Horder, Criminal Culpability: The Possibility of a General Theory, 12 LAW & PHIL. 193 (1993);
195. Michael Moore, Choice, Character, and Excuse, in CRIME, CULPABILITY, AND REMEDY, supra, at 29.
196. See, e.g., Eldridge, supra note 110; Zangwill, supra note 110, at 74-78.
197. Waldron, supra note 3, at 139.
198. Id. at 134; Alan Watson, Seventeenth-Century Jurists, Roman Law, and the Law of Slavery, 68 CHI.-KENT L. REV. 1343, 1354 (1993).
199. I have in mind a process akin to that described in John Rawls' description of "reflective equilibrium." JOHN RAWLS, A THEORY OF JUSTICE 20 (1971).
200. Roper v. Simmons, 543 U.S. 551, 575 (2005).
201. Id. at 576.
202. Id. at 577.
203. Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (plurality opinion).
204. Atkins v. Virginia, 536 U.S. 304, 317 n.21 (2002).
205. See generally JAMES SUROWIECKI, THE WISDOM OF CROWDS (2004); see also Posner & Sunstein, supra note 12 (applying the Condorcet Jury Theorem to the foreign laws debate).
206. See Thomas Kelly, The Epistemic Significance of Disagreement, in 1 OXFORD STUDIES IN EPISTEMOLOGY 167, 191 (Tamar Szabó Gendler & John Hawthorne eds., 2005) (discussing the view that diversity of views leads to better information);
207. Aviezer Tucker, The Epistemic Significance of Consensus, 46 INQUIRY 501, 506-12 (2003) (arguing that a "heterogeneous consensus" is a uniquely reliable source of true beliefs).
208. JOHN STUART MILL, ON LIBERTY (1859), reprinted in ON LIBERTY 5, 19-55 (Stefan Collini ed., Cambridge Univ. Press 1989).
209. Cf. ROBERT NOZICK, INVARIANCES: THE STRUCTURE OF THE OBJECTIVE WORLD 94-95 (2001) (raising the possibility that including two biased jurors - one for each side - in each jury may result in more accurate decisions in the long run, as opposed to having each jury be composed of twelve unbiased jurors).
210. See PLATO, THE REPUBLIC 220-51 (G.R.F. Ferrari ed., Tom Griffith trans., Cambridge Univ. Press 2000).
211. See IMMANUEL KANT, CRITIQUE OF PRACTICAL REASON 3-5 (Lewis White Beck trans., Macmillan Publishing Co. 1956) (1788).
212. RAWLS, supra note 117, at 136-42.
213. THOMAS NAGEL, THE VIEW FROM NOWHERE 3-12, 138-43 (1986).
214. See Hathaway, supra note 73, at 2002-20 (describing the "expressive role" of human rights treaties).
215. See supra Part III.A-C.
216. See Gary Rivlin, In Vino Veritas?, N.Y. TIMES, Aug. 13, 2006, § 3, at 1 (reporting on the biases that affect ratings by major wine publications).
217. Cf. ROBERT NOZICK, THE NATURE OF RATIONALITY, at xii (1993) (dealing with an extreme, absurd version of this problem - the claim that "the attempt to correct for biases itself [is] a bias").
218. Cf. NAGEL, supra note 130, at 140 ("As in metaphysics, so in the realm of practical reason the truth is sometimes best understood from a detached standpoint; but sometimes it will be fully comprehensible only from a particular perspective within the world."); WILLIAMS, supra note 90, at 110 (criticizing attempts "to see philosophical reflection in ethics as a jump to the universalistic standpoint" and the view that "the theoretical reasonings of the cool hour can do without a sense of the moral shape of the world, of the kind given in the everyday dispositions"); Raz, supra note 110, at 210 ("Ideal convergence cannot be a requirement that rules out parochial concepts or removes them to a lesser status. Rather, settling the question of the status of parochial concepts is necessary before one can establish what sort of convergence is necessary.").
219. Cf. Joseph Raz, The Claims of Reflective Equilibrium, 25 INQUIRY 307, 327 (1982) ("It is not a person's divergence from others which would make him lose confidence in some of his views. It is the fact that the best explanation of the fact that those others converge away from him is that they converge around the truth.").
220. Consider a similar point by Nagel: Although no single objective principle of practical reason like egoism or utilitarianism covers everything, the acceptance of some objective values is unavoidable - not because the alternative is inconsistent but because it is not credible. Someone who, as in Hume's example, prefers the destruction of the whole world to the scratching of his finger may not be involved in a contradiction or in any false expectations, but there is something the matter with him nonetheless. . . . NAGEL, supra note 130, at 154-55 (citation omitted).
221. Cf. THOMAS NAGEL, Williams: Resisting Ethical Theory, in OTHER MINDS: CRITICAL ESSAYS 1969-1994 at 174, 180 (1995) ("[T]heoretical principles may be universal without being totalitarian; they may handle some conflicts of values without handling them all. They can be regulative, allowing room for a great deal of pluralism and culturally determined ethical variation within the framework that they define.").
222. Thompson v. Oklahoma, 487 U.S. 815, 838 (1988) (holding that "the Eighth and Fourteenth Amendments prohibit the execution of a person who was under 16 years of age at the time of his or her offense").
223. Roper v. Simmons, 543 U.S. 551, 574 (2005) (discussing several concerns with line drawing and the practical differences between sixteen- and eighteen-year-olds).
224. Coker v. Georgia, 433 U.S. 584, 603 (1976) (Powell, J., concurring in part and dissenting in part).
225. Id. at 601 (Powell, J., concurring in part and dissenting in part).
226. Thompson, 487 U.S. at 853 (O'Connor, J., concurring in the judgment).
227. Id. at 857.
228. Cf. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting) ("General propositions do not decide concrete cases.").
229. For a discussion of the relationship between Coker and racial disparity, see, for example, RANDALL KENNEDY, RACE, CRIME, AND THE LAW 323-26 (1997);
230. Barbara Holden-Smith, Inherently Unequal Justice: Interracial Rape and the Death Penalty, 86 J. CRIM. L. & CRIMINOLOGY 1571, 1572-73 (1996)
231. (reviewing ERIC W. RISE, THE MARTINSVILLE SEVEN: RACE, RAPE, AND CAPITAL PUNISHMENT (1995));
232. Charles J. Ogletree, Jr., Black Man's Burden: Race and the Death Penalty in America, 81 OR. L. REV. 15, 27-28 (2002).
233. See Ring v. Arizona, 536 U.S. 584, 589 (2002).
234. For a discussion of the kinds of particular considerations that should go into deciding the line-drawing issue, see Carol Steiker & Jordan Steiker, Defending Categorical Exemptions to the Death Penalty: Reflections on the ABA's Resolutions Concerning the Execution of Juveniles and Persons with Mental Retardation, 61 LAW & CONTEMP. PROBS. 89 (1998). See also sources cited supra note 64 (discussing the difficult issue of when childhood ends and adulthood begins for the purposes of ascribing responsibility for acts).
235. For a more general discussion about how deep, wide, narrow, or shallow constitutional decision making by the Supreme Court should be, see, for example, RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION (2001);
236. JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE CASE OF AUTONOMY (2006);
237. SUNSTEIN, ONE CASE AT A TIME, supra note 33.
238. JOHN RAWLS, POLITICAL LIBERALISM 147 (1993);
239. see also Charles Taylor, Conditions of an Unforced Consensus on Human Rights, in THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS 124, 124 (Joanne R. Bauer & Daniel A. Bell eds., 1999).
240. Jacques Maritain, Introduction, in HUMAN RIGHTS: COMMENTS AND INTERPRETATIONS 9, 9 (UNESCO ed., 1949).
241. See MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 77-78,147, 221-22 (2001) (describing the deliberate attempt on the part of the drafters to avoid any discussion of first principles);
242. LOUIS HENKIN, THE AGE OF RIGHTS 6 (1990) ("The international expressions of rights themselves claim no philosophical foundation, nor do they reflect any clear philosophical assumptions; they articulate no particular moral principles or any single, comprehensive theory of the relation of the individual to society. . . . The Universal Declaration of Human Rights, striving for a pronouncement that would appeal to diverse political systems governing diverse peoples, . . . shunned philosophical exploration.");
243. MICHAEL IGNATIEFF, HUMAN RIGHTS AS POLITICS AND IDOLATRY 78 (Amy Gutmann ed., 2001) ("Instead of a substantive set of justifications explaining why human rights are universal, . . . the Universal Declaration . . . simply takes the existence of rights for granted . . . ."); Maritain, supra note 150, at 10-11 ("I am quite certain that my way of justifying belief in the rights of man and the ideal of liberty, equality and fraternity is the only way with a firm foundation in truth. This does not prevent me from being in agreement on these practical convictions with people who are certain that their way of justifying them, entirely different from mine or opposed to mine, in its theoretical dynamism, is equally the only way founded upon truth.");
244. see also JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 40-43 (2d ed. 2003).
245. Perhaps when it comes to the norm against the juvenile death penalty, which specifies the minimum age of eighteen, the idea of "incompletely theorized agreement[s]" - agreements on particulars at the shallow level despite disagreements on deep principles - is more appropriate, given the norm's concreteness. SUNSTEIN, LEGAL REASONING, supra note 33, at 35 (emphasis omitted). For a discussion of the similarities and differences between the idea of incompletely theorized agreements and an overlapping consensus, see id. at 46-48.
246. This statement needs to be refined, as Rawls was at pains to point out that there was a difference between "overlapping consensus" and modus vivendi. And one of the differences was that the contents of an overlapping consensus were moral and they were endorsed on moral grounds, albeit from different perspectives. However, it is also importantly limited in the sense that it is not meant to replace or compete with any of the underlying comprehensive doctrines. RAWLS, supra note 149, at 147-48.
247. Id. at 148.
248. See Taylor, supra note 149, at 137-38.
249. See, e.g., Waldron, supra note 3, at 146 ("I am under no illusion, however, that the practice of the Supreme Court in Roper and in other cases actually answers to the characterization I have given. Practice often falls short of theory - particularly when the practitioners have not shown much awareness of the theory in question!" (footnote omitted)).
250. See cases cited supra note 34.
251. See cases cited supra note 35.
252. Roper v. Simmons, 543 U.S. 551, 568-70 (2005); Atkins v. Virginia, 536 U.S. 304, 318 (2002); Tison v. Arizona, 481 U.S. 137, 157-58 (1987); Enmund v. Florida, 458 U.S. 782, 797-98 (1982) (plurality opinion); Coker v. Georgia, 433 U.S. 589, 598 (1977) (plurality opinion).
253. Roper, 543 U.S. at 571-72; Atkins, 536 U.S. at 319-20; Enmund, 458 U.S. at 798-99.
254. For a more extended discussion, see Lee, supra note 30, at 691-92.
255. Cf. Ristroph, supra note 32, at 315 (describing the proportionality jurisprudence in the capital context as utilizing the "overlapping consensus" approach).
256. 543 U.S. at 572.
257. 536 U.S. at 321.
258. 538 U.S. 11, 30 (2003) (plurality opinion).
259. Id. at 25.
260. Id. at 30.
261. SUNSTEIN, LEGAL REASONING, supra note 33, at 37.
262. Id.
263. See id. at 44-46.
264. See, e.g., Jackson, supra note 3, at 114 (describing what she calls the "engagement" model).
265. Roper v. Simmons, 543 U.S. 551, 575 (2005).
266. Id. at 576.
267. See the account contained in GLENDON, supra note 151, at 221-33.
268. See supra text accompanying notes 149-151.
269. 521 U.S. 702, 734-35 (1997).
270. Accepting this view of the Eighth Amendment need not commit one to Ronald Dworkin's constitutional theory or philosophy of law. Compare RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 135-36 (1978) ("[I]t seems obvious that we must take what I have been calling 'vague' constitutional clauses as representing appeals to the concepts they employ, like legality, equality, and cruelty. The Supreme Court may soon decide, for example, whether capital punishment is 'cruel' within the meaning of the constitutional clause that prohibits 'cruel and unusual punishment.' . . . [T]he . . . question the Court . . . faces . . . is this: Can the Court, responding to the framers' appeal to the concept of cruelty, now defend a conception that does not make death cruel?"),
271. with Joseph Raz, Dworkin: A New Link in the Chain, 74 CAL. L. REV. 1103, 1110 (1986) (reviewing RONALD DWORKIN, A MATTER OF PRINCIPLE (1985)) ("Dworkin's point here is sound . . . . The framers of the Constitution intended to proscribe cruel and unusual punishment. . . . To put the point in a way that Dworkin does not, but which I find most congenial, the Constitution, by deploying many broad moral categories, gives discretion to the courts and directs them to use it in light of the true, or the best, moral understanding of what is cruel, etc."), and id. at 1115 ("[H.L.A.] Hart's position is that courts should follow the law and have discretion when the law does not determine a uniquely correct outcome in the case before them. When the law does not directly incorporate moral precepts (e.g., by abolishing the death penalty) but endorses their application by reference to them through the enactment of very general standards ('cruel and unusual punishment'), then it grants courts discretion to apply moral considerations to the case.").
272. Indeed, the common belief that the Eighth Amendment implicates moral questions is precisely what makes the foreign law debate so controversial in this context.
273. 478 U.S. 186, 196 (1986) (Burger, C.J., concurring).
274. It should be noted that Justice Stevens, writing in Thompson v. Oklahoma, does refer to the view of "nations that share our Anglo-American heritage." 487 U.S. 815, 830 (1988). However, he muddles the significance of the shared heritage when he also mentions the views of "the leading members of the Western European Community": "West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries" as well as "Canada, Italy, Spain, and Switzerland," and "the Soviet Union." Id. at 830-31. Perhaps in Lawrence v. Texas, 539 U.S. 558 (2003), the Court employed the type of reasoning that involves dividing the world into those who are like us and those who are not, through the discussion of our "Western civilization." Id. at 572. However, the discussion in Lawrence, too, is a bit obscure, as it is framed as responding to Chief Justice Burger's "sweeping references . . . to the history of Western civilization and to Judeo-Christian moral and ethical standards," and not as a freestanding discussion of what it means to be part of Western civilization. Id. at 571-73. Finally, when the Roper Court discussed England, it noted that "[t]he United Kingdom's experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment's own origins." Roper v. Simmons, 543 U.S. 551, 577 (2005). How we should understand and evaluate the claim of "particular relevance" is, however, left unclear, as the Court quickly reverts back to the language of an international consensus.
275. For some examples of what I have in mind, see Cleveland, supra note 3; Flaherty, supra note 12; Koh, supra note 12; Slaughter, supra note 14. The titles of these articles - "Our International Constitution," "Separation of Powers in a Global Context," "International Law As Part of Our Law," and "Judicial Globalization" - are good indicators of the general worldview of this school of thought. See also Harold Hongju Koh, Paying "Decent Respect" to World Opinion on the Death Penalty, 35 U.C. DAVIS L. REV. 1085, 1105-09, 1123-29 (2002) (discussing the relationship between the contin ued existence of the death penalty in the United States and its foreign policy efforts). But see Larsen, supra note 12, at 1318 ("[I]t is not clear by what authority the federal courts are licensed to rehabilitate the foreign policy of the United States. Foreign policy decisions have always been understood to be the domain of the political branches, and matters of foreign affairs are traditionally questions in which the courts are reluctant to intervene.") (footnote omitted).