Looking at the Constitution through World-Colored Glasses: The Supreme Court's Use of Transnational Law in Constitutional Adjudication
Racusin, Philip D., Houston Journal of International Law
I. WHY IS THE COMPARATIVE CONSTITUTIONAL LAW INDISPENSIBLE? II. BACKGROUND A. Why is the Supreme Court Historically Allowed to Use Transnational Law in Its Decisions? B. How has the Supreme Court Used Transnational Law in the Past? C. The Supreme Court's Current Practice: Transnational Discourse III. THE ADVANTAGES, CRITICISMS, AND METHODS, OF THE SUPREME COURT'S CURRENT APPROACHES TO TRANSNATIONAL DISCOURSE A. Arguments for the Court's Transnational Discourse 1. Furthers Global Dynamism in Constitutional Interpretation 2. Advances Global Development of the Law 3. Leads to Judicial Innovation and Dispels "False Necessity" for Courts and Lawyers B. Objections to Transnational Discourse 1. Lack of Expertise in Using Transnational Law. 2. Misuses of International Law C. Considerations of Comparative Methodology 1. Originalism, or Noncomparativist Interpretative Perspective 2. Modern Functionalist Methods 3. The Dialogical Perspective 4. Genealogical Comparativism, or Ahistorical Comparativism IV. RECOMMENDATAIONS FOR THE IMPROVEMENT OF TRANSNATIONAL DIALOGUE A. Increased Education and Awareness of Transnational Comparative Law B. Engage in More Discourse with Foreign Countries. C. Encourage Transparency in Opinions D. Always Use Transnational Sources in Constitutional Interpretation with Restraint and Due Consideration V. CONCLUSION
To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. (1)
I. WHY IS THE COMPARATIVE CONSTITUTIONAL LAW INDISPENSIBLE?
In comparative constitutional law, (2) as in life, "lilt is always wise to look ahead, but difficult to look farther than you can see." (3) Common sense dictates that when facing a difficult problem, one must research solutions. In ordinary life, a person might speak with his coworkers, friends, or an experienced individual with wisdom to share. Likewise, when engaged with a difficult constitutional issue, the Supreme Court should, and frequently does, look first to American (4) and then to Anglo-law (5) for solutions.
But what if initial efforts yield no solution to our protagonist's intractable problem, and similarly, the Supreme Court finds no answers in domestic law? He must then look to outside, experienced sources for answers, as the Supreme Court has done increasingly in recent years. (6) In recent cases, the Supreme Court has made significant inroads in recognizing the value of and drawing assistance from legal developments around the world. (7) Also increasing is "cross-pollination and dialogue between [national] jurisdictions,"(8) which results from foreign and international sources being treated as transnational law (9) that "transcend[s] [n]ational frontiers." (10)
Can law truly transcend boundaries and should it? It has famously been written that despite relevant political differences, other countries' "experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem." (11) Several Justices take a similar position. (12) Yet, some Justices criticize this practice as contravening American views. (13) Fundamentally the issue is: "In what circumstances, if any, should the United States Supreme Court cite a decision by an international or other foreign court?" (14)
Throughout its history, the Supreme Court has used nondomestic court decisions, international law, and customary international law in interpreting difficult constitutional issues. …