Foreign and International Law Sources in Domestic Constitutional Interpretation

Article excerpt

In recent years, several controversial judicial decisions have pushed the use of foreign and international law sources for domestic constitutional interpretation to the forefront of scholarly discussion. Many legal scholars debate whether the use of these sources is proper in the context of constitutional interpretation. (1) Legal scholars have also discussed many pragmatic issues surrounding the use of foreign law, such as how judges can determine which foreign or international laws are reliable sources, and whether American judges can understand the scope and context of foreign laws. (2) In the last decade, decisions of the United States Supreme Court have added to this important debate.

In some of its most controversial decisions interpreting the U.S. Constitution, the Court has referred to foreign and international laws. For example, in Atkins v. Virginia, the Court held that the Eighth Amendment bars states from executing murderers who are mentally retarded. (3) Writing for the Court, Justice Stevens noted that "within the world community" the execution of the mentally retarded is "overwhelmingly disapproved." (4) The Court declared in Lawrence v. Texas that a state criminal law prohibiting consensual homosexual sodomy violated the Fourteenth Amendment. In that case, Justice Kennedy observed that many other countries have accepted sexual liberty as "an integral part of human freedom." (5) Justice Ginsburg, in Grutter v. Bollinger, relied on international law in explaining why affirmative action does not violate the Fourteenth Amendment. (6) In Roper v. Simmons, the Court, with Justice Kennedy writing, declared unconstitutional the execution of murderers who committed their crimes while under the age of eighteen and lamented that the United States stood "alone in a world that has turned its face against the juvenile death penalty." (7)

In their public comments, some Justices have defended their reliance on foreign and international law. Justice O'Connor has called for increased reliance on international law in the new era of global interdependence. For instance, before her retirement, Justice O'Connor stated that "conclusions reached by other countries and by the international community, although not formally binding upon our decisions, should at times constitute persuasive authority in American courts." (8) Justice Breyer also has discussed publicly his perspective that the Court should consider foreign materials in domestic judicial opinions. (9)

Not every member of the Court agrees with this practice. In his dissenting opinion in Atkins, Justice Scalia, for example, stated that the "practices of the 'world community'" are "irrelevant." (10) Justice Scalia stated: "[W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution." (11)

This panel will discuss this issue from several perspectives. It will address both the history and practice of using foreign and international sources of law. This panel also will discuss when, if ever, it is appropriate for American judges to refer to these sources.

(1.) See, e.g., Steven G. Calabresi, Lawrence, the Fourteenth Amendment, and the Supreme Court's Reliance on Foreign Constitutional Law: An Originalist Reappraisal, 65 OHIO ST. L.J. 1097, 1097 (2004) ("[F]oreign constitutional law is most relevant to good policy-making or to assessments of reasonableness and least relevant to questions of interpretation. …