Academic journal article Policy Review

Foreign Law and the U.S. Constitution

Academic journal article Policy Review

Foreign Law and the U.S. Constitution

Article excerpt

JUSTICE ANTHONY KENNEDY'S majority opinion in Roper v. Simmons, (1) which endorsed the use of foreign and international law in U.S. constitutional adjudication, has at least the virtue of putting everyone's cards on the table. Until that decision was handed down (on March 1, 2005), it remained possible to view the appearance of foreign law in constitutional decisions as nothing more than a minor hobbyhorse for Justice Stephen Breyer or Justice Kennedy--a merely rhetorical nod in the direction of the mostly Western European judges with whom they have become friends at international judicial conferences and other such venues over the years.

As for Justice Antonin Scalia's attacks on the use of foreign legal materials, well, they were withering and witty, as always, but surely a bit over the top? Judges, after all--even Justice Scalia--have been adorning their opinions with bits of poetry, Shakespeare, and the Bible for a very long time, so why not the occasional reference to opinions of the Supreme Court of Zimbabwe or the Privy Council or the European Court of Human Rights? What could possibly be the harm in it?

Justice Kennedy's Roper majority opinion puts paid to the conceit that this is all just a bit of fluff exaggerated into something sinister and conspiratorial by Federalist Society right-wing ideologues. Roper asserts far more, it turns out, than the prior use of foreign law in contemporary constitutional cases would have suggested. (2) It blesses in the contemporary era a new doctrine of constitutional adjudication, what has been called "constitutional comparativism," that is very far indeed from mere flirtation. It invites the deployment of a sweeping body of legal materials from outside U.S. domestic law into the process of interpreting the U.S. Constitution--and, moreover, invites it into American society's most difficult and contentious "values" questions.

The Roper opinion reassuringly holds that the "task of interpreting the Eighth Amendment [cruel and unusual punishment] remains our responsibility." It adds, however, that it does not "lessen our fidelity to the Constitution ... to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our heritage of freedom." Roper then proceeds to deploy a startling range of international authorities that hitherto would have been thought not only irrelevant but affirmatively barred from U.S. constitutional adjudication. That the opinion overlays the groundwork for a globalizing Court with a series of pat phrases transparently aimed at soothing parochial American sensibilities--reassuring the populace that the Constitution remains "theirs"--does not lessen in the least the enormity of what the Court has done.

"International" or "universal"

ROPER CITES, FOR example, the United Nations Convention on the Rights of the Child. Indeed, the Court even notes in passing what might have been thought a fatal flaw, viz., that the United States has not ratified it. The Court prefers to treat this unratified convention as evidence of global--in the sense of universal--views on juvenile capital punishment to which the United States should, and the Court will ensure that it does, pay heed.

Such citation is problematic on a number of fronts. It is, moreover, emblematic of the several conceptual difficulties with the use of either foreign law or international law to which the United States has not assented and given an understanding of the nature and scope of its formal legal undertaking. (3) The Court's unstated assumption, for example, that the Children's Rights Convention's near-universal ratification means that it is actually accepted on its own terms by the world is simply false. Even at the formal legal level, the Court ignores how widely the Convention features sweeping reservations by individual countries: Saudi Arabia, for example, as with so many Muslim countries, has ratified, but with a formal reservation (surely not irrelevant to the Court's inquiry) that none of it has any application to the extent that it conflicts with shari'ah law. …

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