Academic journal article
By Wilkinson, J. Harvie,, III
Harvard Journal of Law & Public Policy , Vol. 27, No. 2
I am delighted to be here today, and I thank the Federalist Society for inviting us to discuss such a timely and engaging topic. I am also honored to be here with Judge Wald, who has rendered such distinguished and collegial service to the federal bench. A ceremony dedicating Judge Wald's portrait at the D.C. Circuit this past month demonstrated the esteem and affection in which she is held by all who served with her.
The explicit use of international law in judicial decisions is increasing. More importantly, I think, the nature of the reliance is changing. The Court has recently turned to foreign courts to support key positions in major rulings on wholly domestic social issues. These changes in the way that the Court has used foreign precedents and the frequency with which it has done so are receiving increased attention.
Throughout our history, the use of foreign precedents to resolve purely domestic constitutional questions has been rare. In several cases, the Court even rejected the relevance of a comparative law perspective to constitutional decision-making. In Stanford v. Kentucky, when faced with substantial evidence that other countries condemned the execution of minors, the Court emphasized that it is "American conceptions of decency that are dispositive" for interpreting the Eighth Amendment. (1) In Printz v. United States, the Court rejected the dissent's argument that other nations' experiences with federalism should "cast an empirical light on the consequences of different solutions to a common legal problem." (2) And in Raines v. Byrd, the Court denied standing to congressmen challenging the Line Item Veto Act. After noting that other countries permit such suits, the Court stated that the practices of foreign nations were irrelevant to its decision. (3)
But in the past two terms, the Court has increasingly turned to foreign sources, and has sometimes used them to support contestable propositions of constitutional law. In Atkins v. Virginia, the Court reversed its perspective in Stanford v. Kentucky, relied upon the observation that other nations "overwhelmingly disapprove" of executing mentally retarded offenders, and found the practice to be unconstitutional. (4) In Grutter v. Bollinger, a concurring opinion expressly relied upon several international conventions and treaties to support the proposition in the majority opinion that race-conscious measures should last as long as necessary to achieve their intended objectives. (5) And in holding in Lawrence v. Texas that laws sanctioning certain intimate conduct in same-sex relationships violate the Constitution, the Court cited a British Parliament report, a Parliamentary Act, and a decision by the European Court of Human Rights. (6) As Professor Mark Tushnet has recognized, never before in our history has the Court relied so directly on foreign precedents to support a position material to the Court's holding. (7)
One may agree or disagree with the result in these cases. The point here is not result, but methodology. One cannot dispute the unmistakable trend towards relying on international practice to resolve important domestic constitutional questions. It is this trend that gives me pause.
To begin with, certain principles are clear. In an age of increasing globalization, governments interact more and face common challenges more than ever before. So of course we have much to learn from other countries, although, I might add, learning from the experience of other states and nations is at least as much a legislative as a judicial enterprise.
I am proud to serve on the Judicial Outreach Advisory Board of the American Society of International Law. Its Handbook rightly notes that
whether it is the integrated international economy and trade disciplines, nuclear power and proliferation, space exploration and computer applications, environmental pollution and habitat degradation, or intellectual properties and entertainment, we are gradually living in a shrinking, interdependent world. …