A democratic theory of constitutional comparison

American Journal of Comparative Law

Volumn 56, Issue 4, 2008, Pages 947-998

  Dixon, Rosalind ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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[No Author keywords available]

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EID: 56249147820     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.5131/ajcl.2007.0032     Document Type: Article

References (305)

1. For an exploration of the concept of constitutional culture, see Robert Post, Foreword - The Supreme Court 2002 Term: Fashioning the Legal Constitution: Culture, Courts and Law, 117 HARV. L. REV. 4, 107 (2003).
2. Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion). See also Thompson v. Oklahoma, 487 U.S. 815 (1988); Stanford v. Kentucky, 492 U.S. 361 (1989); Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543 U.S. 551 (2005).
3. 539 U.S. 558 (2003) (striking down Texas prohibition on sodomy as impermissible infringement on petitioners' right to liberty under the Due Process Clause of the Fourteenth Amendment).
4. For the idea of "engagement": see Vicki C. Jackson, Foreword - Comment: Constitutional Comparisons, Convergence, Resistance, Engagement, 119 HARV. L. REV. 109, 112 (2005)
5. [hereinafter Jackson, Comment].
6. Cf. Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 IND. L. J. 819, 838-39 (1999)
7. [hereinafter Choudhry "Globalization"] (contrasting dialogical with universalistic modes of comparison);
8. Sujit Choudhry, The Lochner Era and Comparative Constitutionalism, 2 INT'L J. CONST. L. (ICON.) 1, 50-51 (2004)
9. [hereinafter Choudhry, Lochner Era];
10. Justice Claire L'Heureux-Dubé, The Importance of Dialogue: Globalization and the international Impact of the Rehnquist Court, 34 TULSA L. J. 15, 17 (1998) (arguing for global dialogue rather than the pure "reception" of foreign law);
11. Note, The International Judicial Dialogue: When Domestic Constitutional Courts Join the Conversation, 114 HARV. L. REV. 2049 (2001)
12. [hereinafter, Note] (describing new form of dialogic comparative influence in both foreign and domestic courts);
13. Anne-Marie Slaughter, A Global Community of Courts, 44 HARV. INT'L L. J. 192 (2003) (describing dialogical modes of transnational influence);
14. Ruti Teitel, Book Review: Comparative Constitutional Law in a Global Age, 117 HARV. L. REV. 2570 (2004) (defining a dialogic mode of comparison).
15. For discussion of broader forms of comparative and transnational engagement by state courts and non-judicial actors, see also Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Entry Ports, 115 YALE L. J. 1564 (2006).
16. For the definition of genealogical forms of comparison, see Choudhry, Globalization, supra note 4, at 838-39.
17. For the two leading theories of comparison, labeled as moral-cosmopolitan theories, in this article, see Eric A. Posner & Cass R. Sunstein, The Law of Other States, 69 STAN. L. REV. 131, 169-71 (2006).
18. Jeremy Waldron, Foreign Law and the Modern lus Gentium, 119 HARV. L. REV. 129, 145-46 (2005)
19. [hereinafter Waldron, Ius Gentium].
20. For the idea of reflective comparison, see Jackson, Comment, supra note 4, at 119 & n.51;
21. Vicki C. Jackson, Transnational Discourse, Relational Authority and the U.S. Court: Gender Equality, 37 LOY. L.A. L. REV. 271, 347 (2003)
22. [hereinafter Jackson, Transnational Discourse];
23. Vicki C. Jackson, Constitutional Law and Transnational Comparisons: The Youngstown Decision and American Exceptionalism, 30 HARV. J. L & PUB. POL'Y 191, 215 n.84 (2006).
24. Compare also CHOUDHRY, Lochner Era, supra note 4, at 50-51;
25. Frank I. Michelman, Reflection: Symposium: Comparative Avenues in Constitutional Law - Borrowing, 82 TEX. L. REV. 1737 (2004)
26. [hereinafter Michelman, Reflection];
27. Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L. J. 1225, 1285 (1999).
28. Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion).
29. Contra Baze v. Rees, 553 U.S. _ (2008) (rejecting a challenge to legal injection as a method of execution, applying a test which asks whether method of punishment subjects persons to "substantial risk of serious harm").
30. 536 U.S. 304, 311-12 (2002).
31. Id. at 346.
32. 543 U.S. 551, 560-63 (2005).
33. 492 U.S. 361 (1989).
34. See Roper, 543 U.S. 551, 565-66 (2005).
35. See, e.g., Michael H v. Gerald D 491 U.S. 110 (1989) (Scalia J.) (rejecting a claim under the due process clause to fundamental right to establish and maintain a parental relationship); Washington v. Glucksberg 521 U.S. 702 (1997) (Rehnquist C.J.) (rejecting a claim under the due process clause to a fundamental right to assistance in ending life in circumstances of incurable illness).
36. Lawrence, 539 U.S. 558, 570 (2003).
37. Id. at 573 (noting state-level legislative trends regarding the abolition of sodomy).
38. Id. (noting state-level legislative trends regarding the abolition of sodomy).
39. See, e.g., Judge Richard A. Posner, Foreword - The Supreme Court 2004 Term: A Political Court, 119 HARV. L. REV. 31, 88 (2005)
40. [hereinafter Posner, Political Court] ;
41. Roger P. Alford, In Search of a Theory of Constitutional Comparativism, 52 UCLA L. REV. 639, 709-10 (2006) (raising objections to foreign law on the basis that "there is no democratic check that the United States can impose upon the rulemaking power of foreign courts").
42. Cf. Committee on the Judiciary. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, 109th Cong., 3rd Sess. (statement of Judge John Roberts in response to question from Sen. Kyl)
43. [hereinafter Roberts, Confirmation Statement].
44. 536 US 304, 316 n 21 (2002) (citing Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00-8727, p. 4).
45. 543 U.S. 551, 576-77 (2005).
46. The Court cites here the ICCPR, Art. 6(5), 999 U. N. T. S., at 175
47. (prohibiting capital punishment for anyone under the age of eighteen at the time of offense) (signed and ratified by the United States subject to a reservation regarding Article 6(5), as noted, supra, at 543 U.S. 551, 576 (2005)., 161 L. Ed. 2d, at 20);
48. American Convention on Human Rights: Pact of San Jose, Costa Rica, Art. 4(5), Nov. 22, 1969, 1144 U. N. T. S. 146 (entered into force July 19, 1978) (same);
49. African Charter on the Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/24.9/49 (1990) (entered into force Nov. 29, 1999) (same).
50. 543 U.S. 551, 577 (2005).
51. See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 830-31 (1988);
52. Stanford v. Kentucky, 492 U.S. 361, 369 n.I (1989), and other cases discussed in Jackson, Comment, supra note 4, at 109-10.
53. 528 U.S. 990 (1999).
54. Id. at 995-96 (emphasis in original).
55. Id. at 996.
56. For instances of empirical comparison in the context of the fourteenth amendment, see, for example, Washington v. Glucksberg, 521 U.S. 702, 730, 734 (1997) (Rehnquist C.J.) (noting evidence from the Netherlands that the legalization of physician assisted suicide may lead to an increase in involuntary euthanasia);
57. Locke v. Davey, 540 U.S. 712, 734 (2004) (Scalia J., dissenting) (holding that French experience supported the non-fanciful possibility of a slippery slope of religious discrimination, and thus as supporting a more stringent application of the Constitutional free exercise standard).
58. For critical analysis of empirical comparison of this kind, see, for example, Sanford Levinson, Looking Abroad When Interpreting the US Constitution: Some Reflections, 39 TEX. INT'L L. J. 353, 364 (2004);
59. Tushnet, supra note 7.
60. 539 U.S. 558, 576 (2003).
61. Bowers v. Hardwick, 478 U.S. 186, 196 (1986).
62. 539 US 558, 573, 576-77 (2003).
63. Cf. Choudhry, Globalization, supra note 4, at 838-39 (explaining the logic of a genealogical model of comparison, without necessarily endorsing reliance on such a model).
64. On genetic forms of comparison, see Louis Henkin, A New Birth of Constitutionalism: Genetic Influences and Genetic Defects, 14 CARDOZO L. REV. 533, 536, 542 (1993). For a recent instance of genetic comparison of this kind, focusing on English understandings of habeas corpus pre-1789, see Boumedine v. Bush, 553 U.S._ §§A-B (2008) (Kennedy J.).
65. For the nature of empirical comparison in this context, see sources cited in supra note 27.
66. See Atkins, 536 U.S. 304, 311 (2002);
67. Lawrence, 539 U.S. 558, 578-79 (2003).
68. For the nature of these difficulties, see, e.g., William J. Brennan, Construing the Constitution, 19 U.C. DAVIS L. REV. 2, 4-5 (1985).
69. Lawrence, 539 U.S. 558, 578-79 (2003).
70. Id.
71. Posner & Sunstein, supra note 6, at 169-71. It should be noted that Posner & Sunstein's arguments also provide a clear rationale, and set of prescriptions, for empirical modes of engagement: seriatum, at 130.
72. Posner & Sunstein, supra note 6, at 141.
73. In more formal terms, the benefits of comparison will derive from Condorcet's showing that as the number of individuals making a decision approaches infinity, the probability that any collective decision by those decision-makers will be correct approaches one, or one hundred percent: see Jean-Antoine-Nicolas de Caritat, Marquis de Condorcet, Essai Sur L'application de l'analyse à la Probabilité des Decisions Rendues à la Pluralité des Voix (Chelsea Pub. Co., New York, 1972) [orig. Paris, (1785)]
74. Waldron, Ius Gentium, supra note 6.
75. Id.
76. Cf. RONALD DWORKIN, FREEDOM'S LAW (1996).
77. Contra Furman v. Georgia, 408 U.S. 238, 273 (1972) (Brennan J., concurring).
78. For an exploration of what this kind of analysis would look like, see, e.g., Gillian Sinnott, Rawls and the Constitution (Harvard Law School, S.J.D. Thesis, 2008).
79. 539 U.S. 558, 573-74 (2003).
80. One possible alternative course in this context is, of course, that of judicial restraint: see James B. Thayer, The Origin and Scope of American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893). That, however, is not the course taken by the relevant Justices in these contexts.
81. Cf. JEREMY WALDBON, LAW AND DISAGREEMENT 112, 149-63 (arguing that majority rule is the only approach that gives each citizen an equal chance of determining the values that ultimately inform the interpretation of the Constitution).
82. For a definition of the "representative" nature of courts' function in this context, see Frank I. Michelman, Foreword - The Supreme Court 1985 Term: Traces of Self-Government, 100 HARV. L. REV. 4 (1986)
83. [hereinafter Michelman, Self-Government].
84. For the idea of burdens of judgment of this kind, see JOHN Rawls, POLITICAL LIBERALISM 54-48 (Rev. ed., 2005).
85. See JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY (William Rehg trans., 1996).
86. For the general distinction between the positive and "supra- positive" dimension to international human rights law, see Gerald L. Neuman, Human Rights and Constitutional Rights: Harmony and Dissonance, 55 STAN. L. REV. 1853, 1856-72 (2003).
87. But compare also Jed Rubenfeld, Unilateralism and Constitutionalism, 79 N.Y.U. L. REV. 1971 (2004) (exploring democratic constitutional objections to deference on the part of Americans to global consensuses, even as sources of positive international legal obligation).
88. Cf. LEWIS CARROLL, THROUGH THE LOOKING GLASS, AND WHAT ALICE FOUND THERE (1871).
89. See MICHELMAN, Reflection, supra note 7.
90. For the idea of strongly "aversive" rather them simply "negative" sources of comparison in this context, see Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case for Studying Cross-constitutional Influence through Negative Models, 1 INT''L J. CONST. L. 296, 312-24 (2003).
91. Compare also Richard Primus, A Brooding Omnipresence: Totalitarianism in Postwar Constitutional Thought, 106 YALE L. J. 423, 437-50 (1996).
92. I am indebted to Martha Minow for suggesting this analogy to me.
93. See UNITED NATIONS POPULATION FUND, POPULATION ISSUES (1999), available at http://www.unfpa.org/6billion/issues.htm. If it, of course, important to note that the U.S. experience has at times been somewhat distinct in these contexts, particularly where religious practices are concerned:
94. see Pew Research Center, Global Attitudes Project, Among Wealthy Nations . . . U.S. Stands Alone in Its Embrace of Religion, Research Report, (Dec. 19, 2002).
95. This probability of error is the sum of the probability that the Court will infer from foreign constitutional practices that there is majority support for recognition of same-sex civil unions among constitutional counterparts, when in fact popular constitutional understandings in 3-2, 4-1 or 5-0 majority of those 5 countries point in the opposite direction. (The probability of there in fact being 3-2 countries against, given the signal the Court receives, will be 8.8%, of there being 4-1 countries against will be 1.5%, and 5-0 countries against will be 0.1%).
96. See further Appendix (on file with author).
97. See L'HEUREUX-DUBÉ, supra note 4;
98. SLAUGHTER, supra note 4. I am indebted to Ryan Goodman for pressing me on this point.
99. 213 U.N.T.S. 222 (entered into force Sept. 3, 1953, as amended by Protocols No.'s 3, 5, and 8 which entered into force on Sept. 21, 1970, Dec. 20, 1971 and Jan. 1, 1990 respectively).
100. See Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 112 YALE L. J. 273 (1997).
101. On the doctrine of margin of appreciation in this context, see e.g., CHARLES H. YOUROW, THE MARGIN OF APPRECIA-TION DOCTRINE IN THE DYNAMICS OF THE EUROPEAN COURT OF HUMAN RIGHTS JURIS-PRUDENCE (1996).
102. In Australia, this followed the invalidation of Victorian laws restricting such access, see Re McBain, Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, and discussion in Adiva Sifris, Dismantling Discriminatory Barriers: Access to Assisted Reproductive Services for Single Women and Lesbian Couples, 30 MONASH U. L. REV. 229 (2004).
103. In Israel, this resulted from changes in 1997 to regulations governing access to ART by the Ministry of Health, following the initiation of proceedings by a lesbian couple, Yaros-Hakak: see Daphna Hecker, Single and Married Women in the Law of Israel - A Feminist Perspective, 9 FEMINIST LEG. STUD. 29, 45 (2001).
104. Du Toit v.The Minister for Welfare and Population Development, 2003 (2) SA 198 (CC); J and B v. Director General: Department of Home Affairs, 2003 (5) SA 621 (CC).
105. See THE ADVENTURES OF PRISCILLA QUEEN OF THE DESERT (1994) (Australia);
106. THE SUM OF US (1994 (Australia);
107. OUR LADY OF THE ASSASSINS (or La Virgen de los Sicarios) (2000) (Colombia);
108. YOSSI AND JAGGER (2002) (Israel); PROTEUS (2003) (South Africa).
109. See Out in the House, SYDNEY MORNING HERALD, Oct. 15, 2005 (listing openly gay and lesbian politicians, including Senator Penny Wong, [elected Senator for South Australia, 2000, see http://www.pennywong.com.au]);
110. Israel's First Openly Gay Politician Enters Parliament, BBC NEWS, Nov. 4, 2002, available at http://news.bbc.co.uk/2/hi/ middle_east/2400237.stm (reporting election of Meretz Party MP, Uzi Even to the Knesset);
111. See Silence, Not Shock Greets Gay Judge's Outing, SYDNEY MORNING HERALD, Apr. 19, 1999 (noting Justice Michael Kirby's public disclosure of his longstanding gay partnership);
112. Judicial Service Commission of South Africa, Interview with Prof. Edwin Cameron, Oct. 3, 1994 (Cameron disclosing personal commitment to gay rights), and appointment of Cameron J. as an Acting Judge on the Constitutional Court in 1999-2000, and as a Justice of the Supreme Court of Appeal in 2000.
113. See Dan Black et. al, Demographics of the Gay and Lesbian Population in the United States: Evidence from Available Systematic Data Sources, 37 DEMOGRAPHER 139 (2000).
114. See John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, 55 CASE W. RES. L. REV. 323, 334-36 (2004).
115. Id. (noting broad trends in state law changes in this context, and suggesting that states such as Florida are simply outliers in this trend).
116. See, e.g., ADVENTURES OF PRISCILLA QUEEN OF THE DESERT (1994) (AUSTRALIA) AND TO WONG FOO, THANKS FOR EVERYTHING! JULIE NEWMAR (1995) (U.S.)
117. For other films with gay and lesbian characters or themes during this period, see also BASQUIAT (1996);
118. THE BIRDCAGE (1996);
119. BROKEBACK MOUNTAIN (2001);
120. CHASING AMY (1997);
121. EVEN COWGIRLS GET THE BLUES (1993);
122. GODS AND MONSTERS (1998);
123. THE HOURS (2002);
124. KISSING JESSICA STEIN (2001);
125. MY OWN PRIVATE IDAHO (1991);
126. PHILADELPHIA (1993);
127. RUTH AND CONNIE: EVERY ROOM IN THE HOUSE (2002).
128. See Representative FRANK Discloses He Is Homosexual, NEW YORK TIMES, May 31, 1987, 22;
129. A Congressional First, NEW YORK TIMES, Nov. 6, 1998, A32 (noting election of Rep. Tammy Baldwin as first Congresswoman who was openly gay or lesbian at the time of election, and not an incumbent).
130. While by 2003 few states enforced prohibitions against sodomy between consenting adults acting in private, only twelve of the twenty-five states that prohibited sodomy in 1986 formally repealed those laws during the intervening eighteen year period. See discussion in Lawrence, 539 U.S. 558, 573 (2003).
131. Note that in the same year, the European Court of Human Rights also affirmed its prior decision in Dudgeon, this time requiring that Northern Ireland change its laws to repeal legal prohibitions on "buggery": see Norris v Ireland, 142 Eur. Ct. H. R. (1988).
132. 999 U. N. T. S., at 175.
133. See Human Rights (Sexual Conduct) Act 1994 (Cth), relying on Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).
134. See discussion in Manuel José Cepeda Espinosa, The Judicialization of Politics in Colombia, in THE JUDICIALIZATION OF POLITICS IN LATIN AMERICA (Alan Angell et al eds., 2005).
135. National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6 (CC).
136. The Court itself did not ultimately rule on this question: see Lawrence, 539 U.S. 558, 578 (2003) (Kennedy J.) ("Bowers was not correct when it was decided"). One of they key arguments made by the petitioners in Lawrence, however, was that Bowers v. Hardwick should not block recognition of the claimed due process right, because American constitutional culture since Bowers had "steadily moved toward rejecting second-class citizen status for gay and lesbian Americans":
137. see Brief for the Petitioners, at 30-31, Lawrence (No. 02-102).
138. 539 U.S. 558, 573 (2003).
139. Act Relating to Civil Unions, No. 91, 2000 Vt. Adv. Legis. Serv. 68 (LEXIS). See discussion in Recent Legislation, 114 HARV. L. REV. 1421 (2001).
140. Rosalind Dixon, Creating Dialogue About Socioeconomic Rights: Strong v. Weak-form Judicial Review Revisited, 5 INT'L J. CONST. L. 591 (2007).
141. Cf. Guido Calabresi, Foreword-The Supreme Court 1990 Term: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 122 (1991);
142. Michael J. Perry, Protecting Human Rights in a Democracy: What Role for Courts, 38 WAKE FOREST L. REV. 655 (2003).
143. The potential for priority-driven burdens of inertia to arise may be even greater in many cases, because distortions in the market for political competition will mean that, in contrast to more ideal conceptions of legislative politics, the views of particular marginal voters are often prioritized at the expense of those of the median voter, in ways which generally tend to favor historically enfranchised and powerful groups of voters, rather than more historically marginalized groups: see, e.g., Samuel Issacharoff, Collateral Damage: The Endangered Center in American Politics, 46 WM. AND MARY L. REV. 415 (2004);
144. Samuel Issacharoff, Gerrymanders and Political Cartels, 116 HARV. L. REV. 593 (2002);
145. The Texas Gerrymander, Editorial, N.Y. TIMES, Mar. 1, 2006, at 18.
146. See F.L. Morton, "Dialogue or Monologue," in JUDICIAL POWER AND CANADIAN DEMOCRACY 115 (Paul Howe & Peter H. Russell eds., 2001).
147. For the importance of incumbency in re-election to the U.S. House of Representatives, see, e.g., John N. Friedman & Richard T. Holden, The Rising Incumbent Reelection Rate: What's Gerrymandering Got to Do With It? J. POL. (forthcoming, 2009).
148. See Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries, 38 WAKE FOREST L. REV. 813, 834 (2003).
149. See Mark Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 STUD. AM. POL. DEV. 35, 40 (1993).
150. See Morton, supra note 81, at 115.
151. For evidence that party elites may be far more likely to be polarized on important social issues than voters generally, see, for example, Kara Lindamann & Donald P. Haider-Markel, Issue Evolution, Political Parties, and the Culture Wars, 55 POL. RES. Q. 91 (2002).
152. Within the Republican Party, a minority of "log cabin" Republicans have argued for the recognition of gay and lesbian rights, while a clear majority has opposed such recognition: see, e.g., Brief for Log Cabin Republicans and Liberty Education Reform, Lawrence (No. 02-102).
153. See Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431, 462 (2005) (noting division within Democratic constituency on issue of same-sex relationships).
154. See also Andrew Jacobs, For Gay Democrats, a Primary Where Rights Are Not an Issue, This Time, N.Y. TIMES, Jan. 28, 2008 available at http://www.nytimes.com/2008/01/28/us/politics/28gay.html (noting criticism by Sen. Barack Obama of homophobia within black churches, and previous division within the party on this issue).
155. See Adam Nagourney, Political Memo; Tug of Constituencies Strains Democrats, N.Y. TIMES, Jan. 18, 2003, available at http://query.nytimes.com/gst/fullpage.html?res= 9902E3DD103CF93BA25754C0A9659C8B63.
156. This willingness developed, even in states with the very limited commitments to equal protection for same-sex couples, as part of an attempt to defend the opposite set definition of marriage: see discussion in Reva Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA, 94 CAL. L. REV. 1323, 1418-19 (2006) (noting that "the gay rights movement's success in contesting the referents of the antidiscrimination principle has led those seeking to preserve marriage as a union between a man and a woman to demonstrate they are not motivated by animus: they have modified their proposed constitutional amendment to allow states to recognize 'civil unions' conferring the legal incidents of marriage on same-sex couples").
157. GIOVANNI SABTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING: AN INQUIRY INTO STRUCTURES, INCENTIVES AND OUTCOMES 183-88 (2 ed., 1997).
158. AREND LIJPHART, PATTERNS OF DEMOCRACY: GOVERNMENT FORMS AND PERFORMANCE IN THIRTY-SIX COUNTRIES 119, 145, 189, 212 (1999).
159. For analysis of the South African system in this context, see Country Profiles: South Africa, THE ECONOMIST, Jan. 5, 2007, available at http://www.economist.com/countries/SouthAfrica/profile.cfm? folder=profile%2DPolitical%20Structure.
160. On the differences between electoral systems across the globe, see, e.g., LIJPHART, supra note 90, 143-70;
161. SARTORI, supra note 89, at 13-14.
162. See AMNESTY INTERNATIONAL, SEXUAL MINORITIES AND THE LAW: A WORLD SURVEY (2001) (reporting that by 2001, at least some forms of legal recognition for same-sex relationships existed in Australia, Canada, New Zealand, and South Africa);
163. Gay Marriage Around the Globe, BBC NEWS, Dec. 22, 2005, available at http://news.bbc.co.uk/2/hi/americas/4081999.stm (noting recognition of same-sex relationships in Latin American countries such as Argentina at the time of Lawrence).
164. See, e.g., An Act to Amend Certain Statutes Because of the Supreme Court of Canada decision on M. v H. and its changes to sixty-seven laws which refer to spouses 1999 (Bill 5); Modernization of Benefits and Obligations Act, C.23, 2003.
165. Hendricks v. Québec, [2002] J.Q. No. 3816 (S.C.) (holding that provisions of federal law picking up the civil law opposite-sex definition of marriage were inconsistent with the Charter, and should be held invalid with effect after twenty-four months); Halpern v. Canada (A.G.) (2003) 65 O.R. (3d) 161 (holding that the common law definition of marriage infringed norms of equality, and should be reformulated to include same-sex couples with immediate effect); Egale Canada Inc v. Canada (A.G.), (2003), 225 D.L.R. (4th) 472 (declaring the common law definition of marriage invalid effective fourteen months after the decision).
166. See Satchwell v. President of the Republic of South Africa, CCT 45/01; Du Toit v. Minister of Welfare and Population Development, 2003 (2) SA 198 (CC); J and B v. Director General: Department of Home Affairs, 2003 (5) SA 198 (CC).
167. Ghaidan v. Mendoza, [2002] 4 All ER 1162 (Eng. CA) (holding that the apparently opposite-sex definition of "spouse" under the provisions of the Rent Act 1977 (UK) giving surviving spouses a right to a continuing "statutory tenancy" on the same terms as the tenancy enjoyed by his or her deceased spouse, would be in breach of arts. 8 and 14 of the ECHR, but that it was possible within the meaning of s. 3 of the HRA to read the extended definition of spouse in par 2(2) of Sched 1 to the Act be read as including persons living "as if husband and wife" in a same sex relationship, as well as persons living "as husband and wife" in an opposite sex relationship).
168. London: Department of Trade and Industry, Women and Equality Unit, June 2003. This consultation paper subsequently led to legislative recognition of same-sex relationships via the Civil Recognition Act 2004.
169. See discussion in Alon Harel, The Rise and Fall of the Israeli Gay Revolution, 31 COLUM. HUM. RTS. L. REV. 443 (2000).
170. New Zealand, Cabinet Policy Committee, Government Civil Union Bill, POL MIN (03) 11/7, MAY 14, 2003.
171. See Jenny Millbank, Recognition of Lesbian and Gay Families in Australian Law - Part One: Couples, 34 FED. L. REV. 1 (2006).
172. On the range of ways in which amicus briefs may influence courts generally, including this kind of advocacy-based mode of influence, see, e.g., Samuel Krislov, The Amicus Brief: From Friendship to Advocacy, 72 YALE L. J. 694 (1963);
173. Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 753 (2000).
174. The current time-limit is thirty days from the date of filing of a petition for certiorari: see SUPREME COURT RULES, Rule 36.1. It is also hard to imagine that such a deadline could be substantially extended without interfering with the expeditiousness of the process of determining whether to grant certiorari or leave to appeal.
175. In 1982, for example, the Supreme Court heard 1906 petitions for certiorari, as compared to full argument in only 145 of those cases. The average costs involved were estimate in 1988 to be between $15-20,000 per brief, with costs ranging up to $60,000: see Gregory A. Caldeira & John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, 82 AM. POL. SCI. REV. 1109, 1112, 1116 (1988).
176. On the idea of "cheap talk" in legal settings, see, e.g., Jason Johnston, Communication and Courtship, Cheap Talk, Economics and the Law of Contract Formation, 85 VA L. REV. 101 (1999).
177. See Brief for Concerned Women of America, Lawrence (No. 02-102), at 1 (noting interest as "nation's largest public policy for women"), 2-3 (arguing that statute does not impermissibly discriminate, and that there is no constitutionally protected right to engage in "deviate sexual intercourse"); National Organization for Women (NOW) Legal Defense and Education Fund, Lawrence (No. 02-102), at 1 (noting interest as "leading non-profit civil rights organization" involved in promoting women's rights), 1-2 (arguing that statute constitutes impermissible form of gender discrimination).
178. It will, for example, be almost entirely costless for poll-participants to exaggerate the intensity of their preferences or views in a polling setting, as opposed to one in which they are actually required to vote or pay some price for the opinions they express.
179. See, e.g., Amos Tversky & Daniel Kahneman, Rational Choice and the Framing of Decisions, in DECISION MAKING: DESCRIPTIVE, NORMATIVE, AND PRESCRIPTIVE INTERACTIONS 167, 175 (Davied E. Bell et al. eds., 1988).
180. See Gallup News Service, Tolerance for Gay-Rights At High Water Mark, May 29, 2007, available at http://www.gallup.com/poll/27694/ Tolerance-Gay-Rights-High Water-Mark.aspx. (noting that support for same-sex marriage was higher in the context of a series of questions relating to gay and lesbian rights).
181. See also Gallup News Service, May 8, 2008 (noting a drop of two percent in public opposition to same-sex marriage when they substituted a question about attitudes to "same-sex marriage" for a question about the right of homosexuals to marry).
182. Research by the Pew Forum in 2007, for example, showed 58% of Americans to be opposed to same-sex marriage, and 38% in favor, whereas research by the Gallup organization in 2007 showed public opinion to be much more evenly balanced, with 53% of respondents opposed, and 46% in favor, of same-sex marriage. See supra note 56;
183. Pew Forum on Public Life: Issues: Same-Sex Marriage, available at http://pewforum.org/docs/index.php?DocID=290.
184. 528 U.S. 990, 995-96 (1999).
185. National Coalition v. Minister for Justice, 1999 (1) SA 6; 1998 (1) BCLR 1517.
186. In Australia, for example, the adoption of the Human Rights (Sexual Conduct) Act 1994 was actively debated in the federal parliament, with government members and the attorney-general strongly defending the desirability of the parliament overriding Tasmania's ongoing prohibition on sodomy and opposition members raising a range of objections to the legislation based on concerns about national sovereignty, federalism, and the potential under-inclusive nature of the legislation. See, e.g., The Hon. M.H. Lavarche (Dickson, Attorney-General, ALP, Government), Human Rights (Sexual Conduct) Bill 1994: Second Reading Speech, Australian Parliamentary Hansard, Oct. 12, 1994, at 1775;
187. Mr D.R. Williams (Tangney, LP, Opposition), Human Rights (Sexual Conduct) Bill 1994: Second Reading Speech, Australian Parliamentary Hansard, Oct. 12, 1994, at 1787.
188. This is true, for example, in a departmentalist understanding: cf. LARRY KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 252-53 (2004);
189. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994);
190. Mark V. Tushnet, Alternative Forms of Judicial Review, 101 MICH. L. REV. 2781, 2782 (2003);
191. Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C L. REV. 773, 783 (2002).
192. On dialogue, see e.g., Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 WM. & MARY L. REV. 1575 (2001);
193. Paul Dimond, Provisional Review: An Exploratory Essay on an Alternative form of Judicial Review, 12 HASTINGS CONST L.Q. 201 (1985);
194. LOUIS FISHER, CONSTITUTIONAL DIALOGUES: LAW AND THE POLITICAL PROCESS (1988);
195. Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993);
196. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185 (1992);
197. Michael J. Perry, Protecting Human Rights in a Democracy: What Role for Courts, 38 WAKE FOREST L. REV. 635 (2003).
198. For writing on dialogue in a broader global context, see, e.g., Christine Bateup, The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue, 71 BROOK. L. REV. 1109 (2006);
199. Dixon, supra note 78;
200. Stephen Gardbaum, The New Commonwealth Constitutionalism, 49 AM. J. COMP. L. 707 (2001);
201. Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn't Such a Bad Thing After All), 35 OSGOODE HALL L.J. 75 (1997);
202. Kent Roach, Dialogic Judicial Review and its Critics, 23 SUP. CT. REV. (2d) 49 (2004).
203. While the link between judicial and media attention has been demonstrated most definitively in the U.S. context, see e.g., Roy B. Flemming et al., Attention to Issues in a System of Separated Powers: The Macrodynamics of American Policy Agendas, 61 J. POL. 76, 84 (1999).
204. See Dixon, supra note 78.
205. Cf. also Michelman, Self Government, supra note 47.
206. Cf. William N. Eskridge Jr. & Philip P. Frickey, Foreword - The Supreme Court 1993 Term: Law as Equilibrium, 108 HARV. L. REV. 27, 88-91 (1994).
207. 795 N.E.2d 941(2003).
208. While in reaching its decision, the SJC in Goodridge largely relied on the application of rational basis review under the equal protection clause, it also made express reference to liberty and privacy rights, and "evolving constitutional standards" regarding such rights:
209. see 798 N.E.2d 941, 969 (2003).
210. See sources cited in supra notes 93-100.
211. See Hendricks v. Québec [2002] J.Q. No. 3816 (S.C.); Halpern v. Canada (A.G.) (2003) 65 O.R. (3d) 161; Egale Canada Inc v. Canada (A.G.), (2003), 225 D.L.R. (4th) 472 (B.C.C.A.).
212. See Halpern, (2003) 65 O.R. (3d) 161 par 156 (effective June 10, 2003). Other relevant decisions did not take effect until at least 2004:
213. see Hendricks, [2002] J.Q. No. 3816 (S.C.) par 211 (suspending declaration of invalidity for twenty-four months);
214. Egale, (2003), 225 D.L.R. (4th) 472 (B.C.C.A.) pars 158-61 (suspending declaration of invalidity for fourteen months).
215. See An Act respecting certain aspects of legal capacity for marriage for civil purposes (Bill C-38).
216. 2006 (3) B.C.L.R 355 (CC).
217. See sources cited in supra notes 93-100.
218. Contra Renee M. Landers, A Marriage of Principles: The Relevance of Federal Precedent and International Sources of Law in Analyzing Claims for a Right to SameSex Marriage, 41 NEW ENG. L. REV. 863 (2007) (arguing that foreign and international sources provided support for the decision reached by the SJC in Goodridge).
219. The SJC did in fact refer to Canadian decisions in the course of framing its remedial decree, but only for the limited purpose of rejecting separation of powers objections to its approach: see Goodridge,798 N.E.2d 941, 969 (2003).
220. See, e.g., Defense of Marriage Act, Pub. L. No. 104-199, sec. 3(a), §7 110 Stat. 2419, 2419 (1996) (defining "marriage" as a union between one man and one woman). Voters in the following states also approved state-level constitutional amendments banning same-sex marriage between 2003 and 2008: Alabama, Arkansas, Colorado, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin. Alaska, Hawaiii, Nebraska, and Nevada also already had such bans in place;
221. see http://www.domawatch.org/amendments/amendmentsummary.html. For broader discussion of these developments, as a form of backlash against Goodridge,
222. see Klarman, supra note 87, at 459-73.
223. Klarman, supra note 86, at 477-79.
224. But see Robert Post & Reva B. Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L L. REV. 373 (2007 (arguing for the potential for backlash to serve a productive function in deepening popular attachment to and identification with the Constitution).
225. See, e.g., Alford, supra note 18, at 64-68;
226. Christopher McCrudden, A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights, 20 OX. J. LEGAL STUD. 499, 507-10 (2000) (noting the danger of jurisdictional "cherry-picking");
227. Posner, A Political Court, supra note 18, at 85;
228. Roberts, Confirmation Statement, supra note 18.
229. Cf. Frank I. Michelman, Ida's Way: Constructing the Respect-Worthy Governmental System, 72 FORDHAM L. REV. 345, 361 (2003).
230. Cf. RICHARD H. FALLON JR, IMPLEMENTING THE CONSTITUTION (2001) (arguing that constitutional history both should and does play some role in almost all areas and approaches to Constitutional interpretation in the United States). This need not mean that a foreign country must have clearly written, formally entrenched constitutional guarantees of the kind adopted in the United States in order to count as a close general counterpart. Informal, conventional sources of constraint can also serve to entrench historical constitutional understandings in foreign countries. In fact, there is a strong argument that American courts should not restrict themselves to looking to foreign constitutional democracies with very strong, formal levels of constitutional entrenchment or to foreign legal practices that have a capital 'C' constitutional label, because if they were to do so, they would be limiting themselves to foreign countries whose official legal practices have a greater than average likelihood of being subject to burdens of inertia that parallel rather than cross-cut those in the United States.
231. Contra Posner, Political Court, supra note 18, at 89. (Thus, comparison to a country such as the United Kingdom would tend to be both legitimate and desirable in a dynamic reflective model.) It does suggest, however, that countries with no real prior history of democratic constitutionalism should not be considered as reliable sources of comparison for the purpose of a dynamic reflective model.
232. See CONSTITUTION OF KIRIBATI 1979, ss. 5, 15 (guaranteeing rights to personal liberty and freedom from discrimination);
233. CONSTITUTION OF THE MARSHALL ISLANDS 1979, ss. 12-13 (guaranteeing rights to equality and privacy);
234. CONSTITUTION OF NAURU 1968, s. 3 (guaranteeing rights to liberty and security of the person and respect for private and family life on a non-discriminatory basis);
235. CONSTITUTION OF PALAU 1979, Art IV s. 5 (guaranteeing right to equality);
236. CONSTITUTION OF TUVALU 1979, s. 11 (guaranteeing rights to liberty and security of the person on a non-discriminatory basis). .
237. See e.g. Penal Code (Kiribati), Pt XVI, s. 153; Criminal Code (Marshall Islands), Title 31, Chapter 1 Part XXV s. 53 [repealed 2004];
238. Penal Code (Nauru); Penal Code (Palau), Pt XVI, s. 153 Penal Code (Tuvalu) Pt XVI, s. 153. No information is available about Nauru in this context.
239. The U.S. State Department, for example, does not record there being any form of gay and lesbian activism in any of these countries: see US STATE DEPARTMENT, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES 2005: MARSHALL ISLANDS (2005), available at http://www.state.gov/g/drl/rls/hrrpt/2005/61617.htm (reporting that apart from one local women's NGO, there are few local NGO's or organized actors in civil society in the Marshall Islands).
240. There is also no evidence of constitutional litigation challenging any of these bans, or even of vigorous constitutional litigation around any rights-based questions in these countries: see e.g., MARSHALL ISLAND SUPREME COURT: RECENT DECISIONS, available at http://www.paclii.org/mh/legis/ consoLact/cotmi363/(showing that the Marshall Islands Supreme Court has heard fewer than thiry separate constitutional claims in the last ten years, and only three claims with a Constitutional dimension, over the last ten years-none of which had any bill of rights dimension).
241. For the importance of social movement activism in ensuring constitutional democratic responsiveness in the U.S. context, see, e.g., William N. Eskridge Jr, Channeling: Identity-Based Social Movements and Public Law, 150 U. PA. L. REV. 419, 498-509 (2001);
242. Siegel, supra note 88.
243. This will also be the case regardless of whether a country is generally a close constitutional counterpart or a constitutional opposite to the country concerned, because even where a country has recently been a clear constitutional opposite, one cannot assume that constitutional practices in that country will necessarily move in exactly the opposite direction to those domestically, particularly given the external pressures on non-democratic states to converge toward the global norm on various constitutional questions. Some of these pressures may include those created by a country's desire to receive international financial aid, favorable international trade terms, or other forms of international assistance. For more sociological/normative rather than instrumental pressures favoring convergence, however, cf. Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. 621, 638-56 (2004) (noting evidence of "acculturation" as a force in the global human rights community that promotes convergence towards certain common human rights standards).
244. Until 1990, Pakistan adopted an exact parallel provision to s. 377 of the Indian Criminal Code. Since 1990, it has also imposed a prohibition on sodomy based on Islamic law that carries a penalty of up to one-hundred lashes or death by stoning (RW/885). See http://www.sodomylaws.org/worloVpakistan/ pakistan.htm.
245. For a discussion of the likely insights to be gained from reflective comparison to a country such as the United Kingdom, see discussion in part V.B infra.
246. See, e.g., Fear and Loathing in Gay India, BBC NEWS, May 17, 2005, available at http://news.bbc.co.uk/2/hi/south_asia/4304081.stm;
247. Social Taboos Pressure Lesbian Love, BBC NEWS, June 6, 2005, available at http://news.bbc.co.uk/2/hi/south_asia/4566091.stm.
248. For a similar form of reflective comparison to constitutional practices in Pakistan, though in the context of citizenship rights, see e.g., JACKSON, Transnational Discourse, supra note 7, at 351-58.
249. See e.g., Minister of Home Affairs & Anor v. Fourie & Anor, 2006 (3) BCLR 355 (CO (Sachs J.) (finding the exclusion of same-sex from civil marriage a breach of Constitutional equality guarantees under the South African Constitution); The Civil Marriage Act 2005, C. 33 (Can) (giving federal statutory recognition to same-sex marriage).
250. On the nature of British practices in this context, see supra notes 96-97.
251. For the importance of free debate within a country in a jury-theorem approach, see Posner & Sunstein, supra note 6, at 153 (noting the importance of the requirement that "countries allow free debate").
252. In determining whether a country should be considered "free" and democratic, Freedom House has always considered whether a country respects the rule of law and basic civil rights of access to the judicial process. See FREEDOM HOUSE, FREEDOM IN THE WORLD 2006: EXPLANATORY ESSAY (2006), available at http://www.freedomh.ouse.org/template.cfm?page=130&year=2006.
253. Cf. Waldron, lus Gentium, supra note 6, at 145 (suggesting that comparison in a deliberative moral-cosmopolitan model should be restricted to countries that are "freedom loving" in character). In an illiberal, non-democratic state such as Saudi Arabia, for example, a decision to abolish the juvenile death penalty might just as readily reflect an instrumental calculation on the part of the Saudi Royal family, about the need to avoid bad international publicity, or gain increased World Bank funding, as a more profound moral judgment on the part of the government about the incompatibility of the juvenile death penalty with Saudi moral understandings.
254. For the importance of free debate within a country in a jury-theorem approach, see Posner & Sunstein, supra note 6, at 153 (noting the importance of the requirement that "countries allow free debate").
255. See id. at 148 (suggesting that "in many cases dissimilarity will be affirmatively desirable, for purposes of using the Jury Theorem, as long as the dimensions along which other countries differ from the United States are not correlated").
256. Cf. supra note 142.
257. The Constitutional Court of South Africa, for example, hires 5-10 foreign clerks per term. See Constitutional Court of South Africa, Law Clerks Programme: Foreign Law Clerks, available at http://www.constitutionalcourt. org.za/site/lawclerks/southafricanlawclerks.htm#foreign.
258. See sources cited in supra note 128.
259. These conclusions are based on country-data compiled by the CIA: see WORLD FACT BOOK 2006 (2006)
260. [hereinafter CIA, World Facts], available at https://www.cia.gov/ cia/publications/factbook/index.html.
261. See e.g. Zuma v. The State, 1995 (2) SA 642, per Kentridge AJ (suggesting that "the concepts of these provisions [in the 1994 Constitution] are by no means an entirely new . . . [these principles) have for 150 years or more been recognised as basic principles of our law, although all of them have to a greater or lesser degree been eroded by statute and in some cases by judicial decision").
262. See CIA, World Facts, supra note 149.
263. Id.
264. Id.
265. For the link between the economically stressed nature of a society and the challenges of large-scale social movement organization, see e.g., Jim Igoe, Scaling Up Civil Society: Donor Money, NGO's and the Pastoralist Land Rights Movement in Tanzania, 34 DEV. & CHANGE 863 (2003) (documenting the challenges facing social movements in the South in raising the necessary funding to achieve their aims on a sufficiently broad scale, without accepting large foreign donations that over-stretch their organizational capacities or undermine their perceived domestic legitimacy and support base).
266. See CIA, World Facts, supra note 149.
267. See SOCIAL MOVEMENTS IN INDIA: POVERTY, POWER, AND POLITICS (Raka Ray & Mary Fainsod Katzenstein eds., 2005).
268. For the history of public interest litigation in India, see Paul P. Craig & S. L. Deshpande, Rights Autonomy and Process: Public Interest Litigation in India, 9 OX. J. LEG. STUD. 356 (1989).
269. See sources cited in supra note 133.
270. Over time, as newer constitutional democracies become more consolidated, this list of countries might expand in ways that could bring both real costs and benefits. It could be costly if it led to a greater danger of either judicial error or selectivity, but also clearly beneficial in view of the fact that it would most likely lead the Court to include a sample of countries that more closely reflected the cultural and geographic roots of Americans. One would therefore hope that as the Court and parties become more practiced in dynamic processes of comparison, they will gradually gain the practical ability to engage with a broader number of countries (both in terms of the minimum and maximum scope of comparison).
271. The Court itself has often explicitly acknowledged this kind of outer limit to the scope of genealogical comparison: see e.g., Thompson v. Oklahoma, 487 U.S. 815, 830-31 (1988) (opinion of Stevens, J.) (considering practices of Anglo-American nations regarding executing juveniles); Enmund v. Florida, 458 U.S. 782, 796-97, n. 22 (1982) (noting that the doctrine of felony murder has been eliminated or restricted in England, India, Canada, and a "number of other Commonwealth countries"); Culombe v. Connecticut, 367 U.S. 568, 583-84, n.25, 588 (1961) (considering English practice concerning police interrogation of suspects). It is important to note, however, that these limits will not apply to genealogical forms of engagement with international as opposed to foreign legal sources, considering the scope for such understandings to inform the interpretation of concepts such "piracy," "war," "treaties" or "offenses against the law of nations."
272. Cf. Sarah Cleveland, Our International Constitution, 31 YALE. J. INT'L L. 1 (2006).
273. See Slaughter, supra note 4.
274. See also Vicki C. Jackson, Comparative Constitutional Federalism and Transnational Judicial Discourse, 2 INT'L J. CONST. L. 91, 109 (2004);
275. HENKIN, supra note 32, at 542;
276. Note, supra note 4, at 2064.
277. Contra Posner & Sunstein, supra note 6, at 172 (suggesting that reliance on a "non-trivial number of states" (say five or more) would be adequate for jury theorem purposes).
278. The maximum scope of comparison in this context would most plausibly be defined as including comparison to those 150 or so countries that have ratified either the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights: see http://www.unhchr.ch/pdf/report. pdf. If one added some minimal requirement of good faith implementation of those rights, however, the scope of comparison would most likely be narrowed to some subset of the 88 to 138 other countries that the respected non-governmental organization, Freedom House rated in 2006 as "free" or "partly free" in the sense of showing basic respect for civil and political rights: see FREEDOM HOUSE, COMBINED AVERAGE RATING: INDEPENDENT COUNTRIES (2006), available at http://www.freedomhouse.org/uploads/Chart85File133.pdf
279. [hereinafter FREEDOM HOUSE, Country Ratings].
280. Cf. Michael D. Ramsey, International Materials and Domestic Rights: Reflections on Atkins and Lawrence, 98 AM. J. INT'L L. 69, 79-80 (2004) (arguing that courts must avoid "false shortcuts" to world consensus in a moral-cosmopolitan model of comparison, and raising particular concerns about reliance on UN interpreters as representative decision-makers in this context).
281. Cf. Roberts, Confirmation Statement, supra note 18.
282. 539 U.S. 558, 576-77 (2003) (citing Brief for Amici Curiae of Mary Robinson et al., at 10-12). In Europe, the right to privacy was expressly protected throughout this period by Art 8 of the European Convention on Human Rights. All of the relevant national jurisdictions also gave either express or implicit protection to the right to privacy during this period. Israel, for example, recognized a small V constitutional right to privacy from 1981 onwards, and that right was given more formally entrenched status, via the BASIC LAW: HUMAN DIGNITY AND LIBERTY (1994):
283. see Protec.tion of Individual Privacy Law, 1981 (Israel), Bank Hamizrachi Case. Canada adopted an implicit commitment to the protection of sexual privacy in 1982, via its adoption of a constitutional guarantee of "liberty and security of the person":
284. see Charter of Rights and Freedoms 1982 (Can), §7 and subsequent interpretation in R v. Morgentaler, [1988] l S.C.R. 30. Colombia and South Africa acquired an express constitutional guarantee of privacy in 1991 and 1993 respectively, via §70 of the CONSTITUTION OF COLOMBIA 1991 and §13 of the interim CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA 200 of 1993. Australia, New Zealand and South Africa also all had a strong common law commitment to protecting privacy during this period:
285. see e.g., Coco v. The Queen (1994) 179 CLR 427 (holding that common law privacy rights attract clear statement rule under Australian law); Tucker v. News Media Ownership Ltd [1986] 2 NZLR 716 (holding that a common law claim of breach of privacy was at least arguable); Bradley v. Wingnut Films Ltd [1993] 1 NZLR 415 (granting an interim injunction to restrain a breack of privacy);
286. Khumalo v. Holomisa, 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) par 17 (O'Regan J.) (holding that South African law of defamation has traditionally embodied concern for privacy rights or rights of individual personality).
287. 539 U.S. 558, 577 (2003).
288. 528 U.S. 990, 995-96 (1999) (emphasis in original).
289. Cf. Waldron, lus Gentium, supra note 6, at 145. It should be noted, however, that the inclusion of Zimbabwe in the process of comparison was much more justifiable in 1999 than it would have been thereafter, as Zimbabwe was rated by Freedom House as "partially free" between 1979 and 2000, as compared to "not free" or one of the worse human rights offenders from 2000 onwards:
290. see FREEDOM HOUSE, FREEDOM IN THE WORLD COUNTRY RATINGS: 1972-2006 (2006, available at http://www.freedomhouse.org/uploads/fiw/FIWAllScores.xls.
291. See CIA, World Facts, supra note 149;
292. FREEDOM HOUSE, Country Ratings, supra note 161. One might also argue that the absence of an independent final court of appeal in the relevant countries undermined the comparability of these countries, when it came to norms of constitutional democratic responsiveness. There is at least some evidence, however, that at least some Caribbean citizens regard the Privy Council as appropriately responsive to domestic constitutional understandings, particularly in the death penalty context:
293. see e.g., Therese Mills, Letter: Colonial Power Over Death Penalty, BBC NEWS, Jan. 19, 2005, available at http://news.bbc.co.uk/1/hi/world/americas/4185745.stm (noting the close link between debates about the CCJ and attitudes toward the Privy Council's interpretation of constitutional limits on the death penalty);
294. CCJ or Privy Council - Debate Heats Up, BBC NEWS, Mar. 1, 2007, available at http://www.bbc.co.uk/caribbean/news/story/2007/03/ 070301_ccjupdate. shtml (noting that at the time of writing, only two Caribbean countries had signed without reservation the treaty to establish the CCJ).
295. See CIA, World Facts, supra note 149.
296. 543 U.S. 551, 576-77 (2005).
297. For the clear absence of procedural due process in many capital trials in Saudi Arabia, see AMNESTY INTERNATIONAL, SAUDI ARABIA: THE DEATH PENALTY (2006), available at http://www.amnesty.org/ailib/intcam/saudi/briefing/8.html;
298. HUMAN RIGHTS WATCH, FLAWED JUSTICE: SAUDI ARABIA (1999), available at http://www.hrw.org/reports/1997/saudi/.
299. See Ernest A. Young, Foreword - Comment: Foreign Law and the Denominator Problem, 119 HARV. L. REV. 148, 162-63 (2005).
300. India acceded to CROC in 1992; Japan ratified the Convention in 1994; and neither country executed a juvenile offender between 1989 and 2005, other than where the defendant had also committed a capital offense as an adult. (The last reported sentencing of a juvenile offender occurred in Japan in 1997. However, the defendant had also committed several capital crimes as an adult, see Japan Hanging on to Death Penalty, HUM. RTS FEATURES (Apr. 23, 2003), available at http://www.tahr.org.tw/site/death/japan. htm.) India in particular also moved increasingly toward the de facto abolition of the death penalty during this period, with the Indian supreme court ruling in 1983 that the death penalty is only permissible in "the rarest of rare cases," and the state carrying out only one execution between 1995 and 2004:
301. see India and the Death Penalty, BBC NEWS, Aug. 4, 2005, available at http://news.bbc.co.uk/2/hi/south_asia/2585611.stm.
302. But see Jeffrey Rosen, Juvenile Logic, THE NEW REPUBLIC, Mar. 21, 2005, at 12 (2005) (adopting a different characterization of Japanese practice).
303. Cf. Frank I. Michelman, Setting the Bar Too High, 156 U. PA. L. REV. 391 (2008) (arguing that implicit in Kennedy's attention to global practices is a form of attention to "dignity societies" which is potentially far more justifiable or defensible than a more truly global survey of practices relating to the juvenile death penalty).
304. On the adoption of bills of rights in this context, see e.g., Gardbaum, supra note 114. On the prevalent approach to their interpretation,
305. see Vicki C. Jackson, Constitutions as 'Living Trees', Comparative Constitutional Law and Interpretive Metaphors, 75 FORDHAM L. REV. 921 (2006).