Last term, the United States Supreme Court took a bold step away from a half century of jurisprudence by refusing to cite international law to interpret the Eighth Amendment's ban on cruel and unusual punishments. In the past, the Court has tended to shield violent teen criminals from the toughest sentences, such as life without the possibility of parole, by using international law to find certain juvenile sentences unconstitutional. This practice made an end run around the democratic desire of the States to proportionately punish juvenile criminals. Despite this tendency to look to international law for guidance, however, in Miller v. Alabama (1) the Court nevertheless ignored the international community's stance against juvenile life without parole (JLWOP). Although facially this appears to be a laudable effort to return to a more democratic Eighth Amendment jurisprudence, this disregard is not a victory for state sovereignty.
In Roper v. Simmons, (2) Graham v. Florida, (3) and Miller v. Alabama, the Court continually held that the law's harshest punishments are cruel and unusual with respect to juvenile offenders. In Roper, the Court removed the possibility of the death penalty for juvenile murderers and used international law as persuasive authority. (4) In Graham, the Court held that JLWOP for noncapital crimes also violated the Eighth Amendment, but the Court's logic depended more heavily on international law than it had previously in Roper. (5) Despite this international law precedent, the argument that international law prohibits tough sentences for juveniles completely disappeared in Miller. What happened?
Put simply, the magic of stare decisis happened. The Court did not need international law because the argument's early successes had a lasting impact on juvenile sentencing jurisprudence. The Court infused the Eighth Amendment with foreign laws in Roper and Graham, both of which served as domestic precedent in Miller. Even though these opinions are detrimental to state sovereignty in juvenile sentencing, the full implication of the Roper-Graham-Miller pattern is far worse. Emboldened by the success of this subversive archetype, it will be no surprise when the "international law prevents..." argument reemerges to drive a new domestic cause.
I. THE FACE ON THE MILK CARTON: THE PROBLEMATIC INTERNATIONAL LAW ARGUMENT
Using international law to interpret the Eighth Amendment, though not unconstitutional, undermines the rule of law. Some national charters require judges to use international law as an interpretive lens, (6) but United States federal judges have no such constitutional mandate. Because there are no limits to or guidelines for the use of international law, a judge may invoke it arbitrarily to promote his policy preferences. Under the Constitution, international law can be a source of law in appropriate instances, but when a judge or justice divines international law only when it conveniently supports his policy preferences, he is substituting his own judgment for that of the democratic legislature under the guise of legal interpretation. (7)
The Constitution features three explicit references to international law or the law of nations. First, Congress has the power "[t]o define and punish ... Offences against the Law of Nations." (8) This enumerated power "grew out of the Founders' concern that the states might not adequately punish infractions of the law of nations (such as attacks on ambassadors)" and might individually precipitate international conflict. (9) Thus, where Congress establishes international law according to its legislative prerogative, the Court may adjudicate claims arising under such Congressional mandates.
The second and third references concern treaties, or conventional international law. The President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties...." (10) Administrations of all political stripes have taken on obligations under conventional international law. …