In his dissent in Roper v. Simmons, Justice Antonin Scalia bemoaned the "brave new meaning" that the Court had given the Due Process and Equal Protection Clauses and, by implication, the Eighth Amendment. (1) One of his principal complaints about the majority opinion, holding that the Eighth Amendment prohibits imposition of the death penalty on a person below the age of 18 at the time of an offense, was its reliance on foreign and international law to reinforce its conclusion that such punishment was "cruel and unusual." Justice Scalia's reference to "brave new meaning," implicitly invoking the negative utopia of Aldous Huxley's famous novel, (2) is of a piece with his position that constitutions are designed to "obstruct modernity," (3) that the "new" is irrelevant to interpreting the written constitutional text. Huxley's sarcastic title for his dystopic novel was, however, drawn from a more ambiguous reference in Shakespeare's The Tempest. (4) Brought up on a deserted island with only her father and his servant, Miranda falls in love with Ferdinand, who is washed ashore by a terrible storm created by her father; upon meeting others from Ferdinand's ship also washed ashore, she exclaims, "Oh brave new world, that hath such creatures in it!" (5) Miranda's statement can be read as one of exultation and celebration of the entrance of foreigners onto her isolated island, even as those with more knowledge can see the darker side of some of these strangers.
Whether one is inclined to exult or bemoan the occasional references to foreign or international law found in recent Supreme Court cases, one thing is clear: references to foreign or international law in the Supreme Court's constitutional jurisprudence are not new. Rather than being a brave or bold departure from established norms of interpretation that exclude their use, references to foreign or international law have played, episodically, a small role in many of the Court's most important opinions over time--sometimes being used to support propositions in dissent in cases subsequently overcome by constitutional amendment or different doctrine, (6) sometimes being cited to support holdings that would be eschewed or qualified today. (7) Although objections to the consideration of foreign or international law have been raised on grounds of national sovereignty, democracy, and the need to cabin judicial discretion, (8) none of these concerns should rule out all such references, whose long history is the starting point for traditionalist analysis of their appropriate use in interpretation.
This essay is an expanded version of a talk I gave at an excellent panel discussion sponsored by the Federalist Society at Columbia University Law School in February 2006 on "Foreign and International Law Sources in Domestic Constitutional Interpretation." Part I argues that the use of non-binding foreign law in constitutional jurisprudence is not a novel form of judicial activism but, rather, a part of the interpretive traditions of the Court evident in many of its most important decisions. Use of foreign or international law is, however, demanding: it is easy to err in our understandings of the foreign; and many U.S. constitutionalists have not been trained in international or comparative law. (9) Part II tries to identify some differences between foreign and international law that may be relevant to their use in domestic constitutional interpretation. Finally, Part III responds briefly to the argument made by Professor Steven Calabresi in his comments on the panel and in a paper published elsewhere that American exceptionalism is a reason not to consider foreign and international experience. (10) To the contrary, I suggest that, if the United States is to be a "City on a Hill," a leader in the protection of human liberty and freedom (a goal that at times seems increasingly distant), (11) we must understand the contours of the terrain around us.
I. FOREIGN LAW IN THE COURT'S CONSTITUTIONAL JURISPRUDENCE: THE MISSING SEGMENT OF JUSTICE JACKSON'S YOUNGSTOWN CONCURRENCE
Notwithstanding the furor over the Court's reliance on foreign and international law in Roper and Atkins v. …