International Law as a Resource in Constitutional Interpretation

By Neuman, Gerald L. | Harvard Journal of Law & Public Policy, Fall 2006 | Go to article overview
Save to active project

International Law as a Resource in Constitutional Interpretation

Neuman, Gerald L., Harvard Journal of Law & Public Policy


Despite recent polemics, the use of international law in constitutional interpretation, as one factor among others, is highly traditional and eminently proper. Some international law is too important to the place of the United States in the world for our constitutional jurisprudence to ignore; some international law provides useful functional or normative insights on which constitutional adjudication can draw.

As a matter of division of labor, (1) I will concentrate here on the use of international--as opposed to foreign--law in constitutional interpretation. Some criticisms of recent Supreme Court decisions have coupled attacks on these two categories of law, and some criticisms suggest a lack of awareness that there is any difference between them. In fact, there are important differences between the two categories, and the arguments for their relevance do not entirely coincide. At the same time, the two categories partly overlap.

Judge Frank Easterbrook and Professor Steven Calabresi, in their contributions to this symposium, appear to treat these categories as interchangeable for purposes of their arguments about "foreign law," and within the limits of their respective methodologies that may be appropriate. (2) From the broader (and I believe more justifiable) perspective taken in this Article, the differences can be significant.

The category of "international law" covers a wide variety of different kinds of norms, such as customary international law, multilateral treaties, and bilateral treaties. It includes treaties to which the United States is a party, treaties that we have chosen not to ratify, and treaties that we are not eligible to ratify. Some international law is part of the basic legal architecture of the world we live in. Some international law is particularistic and ephemeral.

These distinctions are relevant to how various norms of international law should be used in constitutional interpretation, but their existence should not disqualify the entire category from consideration. International law as such is not ephemeral and cannot be dismissed as a pack of "foreign moods, fads or fashions." (3)

The category of "foreign law" could be understood principally as referring to the domestic legal systems of foreign states, including their national constitutions, statutes, and other domestic norms. (4) Sometimes discussions focus even more narrowly on foreign constitutional law, but the content of national constitutions varies greatly, and some systems give statutory answers to questions that other systems treat as constitutional. "Foreign law" can also be understood more broadly as further including the international obligations of a foreign state, and especially those that do not bind the United States, such as regional treaties on other continents, bilateral treaties among foreign states, and global multilateral treaties that the United States has not ratified. Thus, some "foreign law" may also be "international law."

In recent cases that have excited controversy, such as Atkins v. Virginia, (5) Lawrence v. Texas, (6) and Roper v. Simmons, (7) the Supreme Court has primarily cited to foreign domestic law and to international law binding on other countries. The international sources included regional human rights treaties and jurisprudence thereunder, and the United Nations Convention on the Rights of the Child, which the United States has not ratified. The Court in Roper also noted the prohibition on the juvenile death penalty in the International Covenant on Civil and Political Rights, which the United States did ratify in 1992, but with a unique reservation excluding that particular provision. (8)

Treaties ratified by the United States without pertinent reservation, on the other hand, are not foreign law at all. The Supremacy Clause of the U.S. Constitution declares them to be supreme law of the land. (9) Treaties may be viewed as having a foreign aspect, in that the United States cannot adopt them unilaterally, and cannot modify them without the consent of treaty partners.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

International Law as a Resource in Constitutional Interpretation


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?