In the wake of Lawrence v. Texas (1) and Roper v. Simmons, (2) most of the legal world in the United States was alerted to the existence of constitutional comparative analysis. (3) Reactions to the use of non-U.S. persuasive authority in those decisions ranged from cheers and applause to jeers and catcalls, the latter being far more voluminous than the former. (4) The opposition to the practice of using foreign authority became a rallying cry that found its expression in various fora. For example, in the political arena, several members of congress offered resolutions condemning and prohibiting constitutional interpretation by methods of comparative analysis, (5) while, in the judicial realm, two prospective Supreme court candidates essentially had to swear absolutist "blood oaths" repudiating the whole enterprise. (6) The din raised was so pervasive that it seeped out of the halls of congressional hearings to find an echo chamber in popular media. (7)
But the cacophony reached its most feverish pitch in the realm of legal scholarship. Scholars quickly took sides in this debate, with opinions divided ideologically between those sympathetic to an expanding view of supporting the use of foreign authority (8) and those who decried the very idea of constitutional comparative law. (9) While academics on both sides of the issue offered sound and persuasive normative analysis, most of the commentary has been somewhat one-dimensional. (10) This is because the almost singular focus of the debate has been to discuss whether it is appropriate for U.S. courts to engage in comparative constitutional analysis or not. (11) Although this debate is important, it should constitute the starting point (rather than an end in and of itself) for a more comprehensive and theoretical discussion about the various facets of constitutional interpretation encompassed by comparative constitutional law. This Article proposes to examine one of those facets in detail.
This Article focuses on the aspect of constitutional interpretation that can be referred to as the "international law dilemma." In the traditional application of comparative constitutionalism in this country, an American jurist consults materials from outside the body of U.S. law that then serve as persuasive authority in a particular case to better interpret a U.S. constitutional provision at issue. For the purposes of this Article, those materials can come from two different repositories of legal opinion: (12) foreign domestic law (13) and international law. (14) So what is the dilemma?
The dilemma stems from the fact that when an American judge chooses to engage in constitutional interpretation that involves comparative constitutional analysis, he or she chooses some non-U.S. legal material to compare with the United States Constitution. In other words, the object of comparison will always be domestic law (the U.S. Constitution). However, as noted above, the source of the subject of comparison (that to which the U.S. Constitution is being compared) might originate within the domestic law of a foreign state or among the body of international law. The question then arises: is it appropriate to consult international law when the issue to be resolved by the U.S. court is a domestic constitutional provision? If an American judge chooses a decision, for example, of the Supreme Court of Canada interpreting its own constitution as an aid to interpret a similar provision of the U.S. Constitution, the comparison would be of a domestic, albeit foreign, law to another domestic law. (15) Prosaically, one could say this would be comparing apples to apples (possibly Mcintosh to Red Delicious). But the use of international law, which by definition is not domestic, in this context would be more akin to comparing apples to oranges. This therefore presents the intriguing conundrum of whether the comparison is intellectually and legally plausible, (16) given that many scholars, legislators, and judges "treat international law and domestic law as two distinct and separate realms. …