Some modest uses of transnational legal perspectives in first-year constitutional law

Journal of Legal Education

Volumn 56, Issue 2, 2006, Pages 201-215

  Siegel, Neil S ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 40749120936     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (56)

1. Because the terminology can be unclear and even conceptually unstable, I want to clarify what kinds of law I mean by the term "transnational legal perspectives." I understand transnational law to encompass the law of other nations, the law governing cross-border legal matters (which is sometimes incorporated into domestic legal norms), public international law, and anything else "legal" that might be relevant to transactions involving contacts between at least two nations. Transnational law is conceptually distinct from "non-U.S. law," which is used as shorthand for everything "legal" that has not been incorporated into domestic U.S. law. See the discussion of the Supreme Court's invocations of foreign legal practices; see generally Mark Tushnet, How (and How Not) to Use Comparative Constitutional Law in Basic Constitutional Law Courses, 49 St. Louis U. L. J. 671 (2005). Non-U.S. law includes most of what is called transnational law, but not all of it.
2. Students at Duke Law School take the basic 4.5-credit course in Constitutional Law during their first year. My course covers separation of powers, federalism, incorporation, state action, substantive due process, procedural due process, and equal protection. When time permits, I also teach the power of Congress to authorize private suits against states.
3. The Third Amendment provides that "[n]o Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." U.S. Const, amend. III. I reference the Third Amendment at the beginning of my course as an example of the historical contingency of constitutional provisions. The Amendment docs not reappear until my students encounter Justice Douglas' controversial opinion in Griswold v. Connecticut, 381 U.S. 479, 484 (1965) ("[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy...." (citation omitted)).
4. Canada, Germany, South Africa, and Hungary have high courts that exercise robust powers of judicial review in constitutional cases. Regarding the Hungarian experience, see Kim Lane Scheppele, The New Hungarian Constitutional Court, 8 E. Eur. Const. Rev. 81 (Fall 1999) (discussing the Court's practice of holding that parliament was acting "unconstitutionally by omission" by failing to pass certain legislation);
5. Donald L. Horowitz, Constitutional Courts: Issues for Iraq (2003) (unpublished manuscript) (on file with author) (describing various ways in which "[t]he Hungarian Constitutional Court has been unusually aggressive").
6. Mark Tushnet offers a useful example: "[T]he Canadian 'notwithstanding' mechanism... allows a legislature to override specific constitutional provisions by majority vote, in legislation that sunsets after five years, a period that necessarily encompasses an election in which the voters can decide whether they approve of the legislature's action." Tushnet, How (and How Not) to Use Comparative Constitutional Law, supra note 1, at 675.
7. See Horowitz, Constitutional Courts, supra note 4 ("Constitutional courts are important, but not always indispensable, features of constitutional government. Britain developed a constitutional regime without judicial review of legislation or governmental action for its constitutionality. Parliamentary supremacy did not produce an illiberal regime. Switzerland has had relatively little judicial review and still has no separate constitutional court. Yet there are few more vibrantly liberal democratic countries in the world.").
8. See Paul J. Mishkin, Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 71 (1965) ("There indeed exists what Felix Cohen characterized as 'the normative power of the actual': that which is law tends by its very existence to generate a sense of being also that which ought to be the law.").
9. Cf. Ruth Bader Ginsburg, Assoc. J., U.S., Speech at the Constitutional Court of South Africa, A Decent Respect to the Opinions of [Human]kind: The Value of a Comparative Perspective in Constitutional Adjudication (Feb. 7, 2006) (transcript available at (last visited Sept. 21, 2006). ("The U.S. judicial system will be the poorer, I have urged, if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own." (emphasis added)).
10. The concern here is with student bias, not with an actual paucity of forceful examples in U.S. history that belie the identification of federalism with racism. See, e.g., Federal Energy Regulatory Commission (FERC) v. Mississippi, 456 U.S. 742, 788-89 (1982) (O'Connor, J., concurring in judgment in part and dissenting in part).
11. Daniel Halberstam, Comparative Federalism and the Issue of Commandeering, in The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (Kalypso Nicolaïdis and Robert Howse eds., New York, 2001) [hereinafter The Issue of Commandeering] ("In the European Union, by contrast [to the United States], the subject of concern is not Union action that 'commandeers' Member State legislative or administrative bodies, but EU legislative activity that has direct effect in the legal systems of the Member States. Member States tend not to welcome Community regulations, which have immediate legal force for individuals within a Member State, and instead prefer that the Community pass directives, which command a Member State to regulate in a particular area and thus require further Member State legislative action to become fully effective within that state. So, too, 'commandeering' is a basic feature of German federalism... .") (footnote omitted).
12. See also Daniel Halberstam, Of Power and Responsibility: The Political Morality of Federal Systems, go Va. L. Rev. 731, 800, 801 (2004) [hereinafter Of Power and Responsibility] (arguing that the Tenth Amendment decisions "stand in striking contrast to the analogous doctrines of the European Court of Justice," and exploring some of the "reasons for welcoming 'commandeering' in the European Union but not in the United States").
13. In addition to the issue of regulatory control discussed in the text, Halberstam stresses that "the United States Supreme Court treats the various levels of government as permanently hostile adversaries that have reached a bargain in a historically situated arms-length deal, whereas the European Court of Justice views the various actors as fundamentally joined in a common enterprise." Halberstam, Of Power and Responsibility, supra note 10, at 801.
14. Technically, both directives and regulations qualify as forms of "commandeering" under U.S. Supreme Court doctrine - specifically, Printz v. United States, 521 U.S. 898 (1997) - because most regulations in the European Union must be enforced by member-state institutions. See, e.g., Halberstam, The Issue of Commandeering, supra note 10, at 213. Note, moreover, that even if one were to dispute Professor Halberstam's empirical judgment about the preferences of member states, the key conceptual point would remain that both directives and regulations are clearly legal in the European Union.
15. Printz, 521 U.S. at 976-77 (Breyer, J., dissenting).
16. Id. at 921 n.11.
17. Id. at 977 (Breyer, J., dissenting).
18. Halberstam, Comparative Federalism, supra note 10, at 249-50 (footnote omitted).
19. Id.
20. See Id. at 213-14, 230-31.
21. Printz, 521 U.S. at 977 (Breyer, J., dissenting).
22. See, e.g., Halberstam, Comparative Federalism, supra note 10, at 247 (noting that "the anti-commandeering rule might have perverse effects, by prodding the central government to develop the bureaucracy necessary to implement its policy without involving the component States").
23. For further discussion, see Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 Vand. L. Rev. (forthcoming 2006).
24. In New York v. United States, for example, Justice O'Connor wrote for the Court that "where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished" because "it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision." New York v. U.S., 505 U.S. 144(1992).
25. In the recent juvenile death-penalty case, see infra notes 43-50 and accompanying text, Justice Scalia underscored the Court's inattention to the international community's greater tolerance of restrictions on abortion: And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. Though the Government and amici in cases following Roe v. Wade...urged the Court to follow the international community's lead, these arguments fell on deaf cars. Roper v. Simmons, 543 U.S. 551, 625-26 (2005) (Scalia, J., dissenting) (citations omitted).
26. Basic Law for the Federal Republic of Germany, available at (last visited June 20, 2006).
27. See, e.g., Paul Gewirtz, Privacy and Speech, 2001 Sup. Ct. Rev. 139, 186 ("The German courts have decided several cases addressing the balance between the right to 'informational self-determination' and 'freedom of the press.' The courts' analysis, of course, depends upon a constitutional context quite different from ours: the privacy right is expressly protected by the German Constitution and applies to relationships among citizens, not simply between the citizen and the state.").
28. See Donald P. Kommers, The Constitutional Law of Abortion in Germany: Should Americans Pay Attention?, 10 J. Contemp. Health L. & Pol'y 1, 6 (1994) (citing 39 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] [First Senate] 1.42 (FR.G.) (1975), translated in 9 J. Marshall J. Prac. & Proc. 551, 605-84 (1976)).
29. 521 U.S. 702, 734-35 (1997). Glucksberg illustrates the practice of looking overseas to consider the consequences of a particular rule in order to determine whether the rule is consonant with relevant constitutional values. Glucksberg also underscores the care with which such looking abroad should be conducted: the Glucksberg Court's account of the Dutch experience has not been replicated here.
30. See Gonzales v. Oregon, 126 S. Ct. 904, 912-13 (2006).
31. 497 U.S. 261, 280 (1990) (emphasis added).
32. Both the Indian Constitution and the (unwritten) constitution of the United Kingdom may be amended by a simple majority of the legislature. Robert L. Maddex, Constitutions of the World 159, 372 (ad ed., Wash., D.C., 2001). Additionally, several U.S. states - including Arizona, Arkansas, Indiana, Iowa, and Massachusetts - require only a simple majority vote in the legislature to amend their constitutions. Robert L. Maddex, State Constitutions of the United States xxxii - v (Wash., D.C., 2006).
33. In Brazil, for example, no amendment may abolish the federal form of government, the direct, secret, universal, periodic vote, the principle of separation of powers, or individual rights and guarantees. Maddex, Constitutions of the World, supra note 29, at 52. In Chad, amendments may not be proposed if they interfere with territorial integrity, independence, national unity, the republican form of government, the division of powers and security, the freedoms and fundamental rights of citizens, or political pluralism. Id. at 69. Germany prohibits amendments to the first twenty articles of its constitution and any change to the constitution that would affect the division of the federation into states or state participation in legislation. Id. at 132.
34. 542 U.S. 507 (2004).
35. 126 S. Ct. 2749, 2006 WL 1764793.
36. Statutory interpretation and constitutional law are related because, among other reasons, the outcome of an exercise in statutory construction can determine whether the court must decide a constitutional issue. In Hamdi, for example, the plurality avoided the question whether the president possessed inherent Article II power to detain U.S. citizens as enemy combatants by holding that Congress had authorized the President's actions. Hamdi, 542 U.S. at 516-17.
37. Hamdi, 542 U.S. at 518 (referencing the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001), which authorizes the president to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the terrorist attacks of September 11, 2001). Justice O'Connor also wrote, among other things, that "[t]here remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal." Id. at 538 (citing Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, §§ 1-6 (1997)). Army Regulation 190-8 was adopted to implement the Geneva Convention. It specifies the procedures that administrative military tribunals must follow in determining a detainee's prisoner-of-war (POW) status. See id.
38. Hamdi, 542 U.S. at 549-51 (Souter, J., concurring in part, dissenting in part, and concurring in judgment) (referencing Army Regulation 190-8, §§ 1-5,1-6).
39. A federal district court adopted Justice Souter's reasoning in Hamdi and applied it to detainees at Guantanamo Bay, Cuba. Hamdan v. Rumsfeld, 344 F Supp. 2d 152 (D.D.C. 2004) (Robertson, J.). The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding among other things that Congress had authorized the military commissions at Guantanamo Bay, the Geneva Conventions gave detainees no right to enforce the treaty's provisions in court, and the Guantanamo military commissions satisfied the "competent tribunal" requirement of Army Regulation 109-8. 415 F.3d 33 (D.C. Cir. 2005). The Supreme Court recently reversed on the ground that the military commissions violated Articles 21 and 36(b) of the Uniform Code of Military Justice, 10 U.S.C. §§ 821 and 836(b), as well as Common Article 3 of the Geneva Conventions. The Court held that Common Article 3 applies to the conflict with al Qaeda and controlled the litigation because Article 21 conditions the President's authority to use military commissions on his compliance with the law of war, and the Conventions are incontrovertibly part of the law of war.
40. In discussing international law, I flag for students a potentially significant difference between its role - especially treaties - and the relevance of transnational materials generally. International law may impose direct, rather than merely interpretive, restraints on the Executive. See U.S. Const. art. VI (including treaties as part of "the supreme Law of the Land"). I also note to students that international law normally does not have constitutional status - for example, Congress can override treaties - but can acquire this status if it is incorporated in constitutional interpretation.
41. See, e.g., Brief Amicus Curiae of Comparative Law Scholars and Experts on the Laws of the United Kingdom and Israel in Support of Respondent, Rumsfeld v. Padilla, No. 03-1027 (filed Apr. 12, 2004), at 3 (stressing "how dramatically the indefinite, incommunicado detention to which Petitioner has subjected Jose Padilla departs from the minimum procedural protections that other democracies provide detained suspected terrorists"); H.C. 5100/94, Pub. Comm. Against Torture in Israel v. State of Israel, 53(4) P.D. 817, reprinted in 38 I.L.M. 1471 (prohibiting aggressive methods of interrogating terror suspects because they had not been legislatively authorized).
42. The experiential resources discussed in the text constitute more than policy considerations; they inform the doctrinal tests articulated by the U.S. Supreme Court in constitutional cases. See, e.g., Hamdi, 542 U.S. at 529 ("Mathews [v. Eldridge, 424 U.S. 319 (1976)] dictates that the process due in any given instance is determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process. 424 U.S. at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of 'the risk of an erroneous deprivation' of the private interest if the process were reduced and the 'probable value, if any, of additional or substitute safeguards.'" Id.).
43. On January 13, 2005, Justices Scalia and Breyer met at American University's Washington College of Law in Washington, D.C. to discuss whether the U.S. Supreme Court should cite foreign judicial decisions in its opinions. Their conversation has since been published. See Norman Dorsen, 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).
44. Because I do not cover the death penalty in my course, I expose my students to this material towards the beginning of the semester, when I teach different theories of constitutional interpretation.
45. 536 U.S. 304 (2002) (holding that the execution of mentally retarded persons is prohibited by the Eighth and Fourteenth Amendments).
46. 539 U.S. 558 (2003) (holding that a Texas law making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause of the Fourteenth Amendment).
47. 543 U.S. 551 (2005) (holding that the execution of persons who were under eighteen years of age at the time they committed their capital crimes is prohibited by the Eighth and Fourteenth Amendments).
48. Id. at 578.
49. Id. at 578.
50. Roper, 543 U.S. at 578.
51. See Ginsburg, A Decent Respect, supra note 8: Judges in the United States are free to consult all manner of commentary - Restatements, Treatises, what law professors and 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?... Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions.
52. Compare, e.g., the Scalia/Breyer Discussion, supra note 40, at 530-31 (Scalia: "It invites manipulation. You know, I want to do this thing; I have to think of some reason for it. I have to write something that - you know, that sounds like a lawyer. I have to cite something.") with id. (Breyer: "But if you are not conscientious, why become a judge? What would be the pleasure or reward in entering a profession that prizes integrity, honesty, doing the job properly?").
53. See, e.g., Roper, 543 U.S. at 587 (Stevens, J., concurring) ("that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text"). Questions about the proper use of transnational perspectives are analytically separable from debates about the meaning of the U.S. Constitution as fixed absent amendment or evolving regardless of amendment. But for proponents of an evolving Constitution, the issue arises whether (and why) this evolution should be responsive to transnational legal perspectives.
54. See generally, Robert C. Post, Theories of Constitutional Interpretation, in Robert Post, Constitutional Domains: Democracy, Community, Management 23-50 (Cambridge, Mass., 1995).
55. See Tushnet, How (and How Not) to Use Comparitive Constitutional Law, supra note 1, at 671 ("[T]he task of incorporating non-national material in a nationally oriented course is not an easy one. Facile comparisons are easy; serious ones difficult. Differences in culture, in legal traditions, and in institutional arrangements other than the one being compared at the moment all require great caution in suggesting to U.S. law students that they can become better lawyers by knowing a little bit about non-U.S. law."). Yet comparativists might take care not to scare off U.S.-centered teachers by setting impossibly high standards regarding what counts as a responsible transnational comparison. There is a middle ground, one that requires some (but not extensive) transnational expertise on the part of the instructor and that results in illuminating pedagogical comparisons.
56. I am also concerned that teaching a little transnational law in U.S.-centered courses might sap the desire of law faculties to hire comparative lawyers who specialize in teaching comparative law. Such an outcome would be unfortunate, an inexpensive but insufficiently considered way out of the implications of globalization for legal education. The solution is not to minimize student exposure to transnational perspectives in first-year courses, but to continue hiring comparative legal scholars.