The Permeability of Constitutional Borders
Jacobsohn, Gary Jeffrey, Texas Law Review
[T]he science of jurisprudence, the pride of the human intellect, which with all its defects, redundancies, and errors is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns . . . .
I. Introduction: Transnational Jurisprudence and the Challenge to Comparative Constitutional Theory
"[I]rrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people."2 These words of Justice Antonin Scalia are hardly reassuring to those of us who study and write about some of these practices, believing perhaps that the justice and his colleagues might benefit in some small way from what we have learned from our travels and reflection. To be sure, the fact that Justice Scalia's sentiment was voiced in the course of questioning the appropriateness of another Justice's invocation of foreign experience suggests that there may actually be some judicial receptivity to comparative insights and findings. But that only begs the question of why there should be.
The question came up again on the last day of the 2002 Supreme Court term when, in his opinion for the Court striking down a Texas homosexual sodomy statute, Justice Anthony Kennedy cited several decisions of the European Court of Human Rights in support of the majority's holding in the case.3 "The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries."4 In response, Justice Scalia dismissed "[t]he Court's discussion of these foreign views" as "meaningless," but "[d]angerous dicta,"5 repeating the now familiar refrain that "this Court. . . should not impose foreign moods, fads, or fashions on Americans."6
Given the momentousness of the legal change wrought by the decision, this exchange received only a passing glance in the extensive commentary immediately following its announcement. It has since received more attention; Robert Bork, for example, has cited the references to foreign sources in Lawrence v. Texas (along with Grutter v. Bollinger)7 as episodes in an "absurd turn in our jurisprudence" that reflects the arrogance of power of the modern judiciary.8 "[E]ven Scalia at his gloomiest probably did not foresee [how a new Constitution] might be designed bit by bit from European, Asian, and African models."9 In a recent book, he connects this jurisprudential turn with one of his longstanding concerns, "the transnational culture war."10 Along similar lines, Ken Kersch discovered in the "seemingly benign references" to foreign sources "a vast and ongoing intellectual project," part of a "sophisticated effort to transform American constitutional law and its interpretation."" As a result, "[e]ventually, and possibly sooner than we think, the nature and path of American constitutional development will be radically altered."12
These reactions may very well exaggerate the influence of external sources in the outcomes of these cases, and arguably they overstate the broader jurisprudential significance of the infusion from abroad. They do, however, address an important issue concerning the role of constitutional theory in comparative law. The specific problem that concerns me is suggested in Justice Scalia's objection to the judicial deployment of comparative examples by the Court in overturning the controversial ruling in Bowers v. Hardwick.13 That case withheld the status of the fundamental right to consensual sexual relations between homosexuals (as well as others who perform acts of sodomy in their intimate associations) on the ground that the behavior in question was not "deeply rooted in this Nation's history and tradition."14 This provoked Justice Scalia to underscore the words "this Nation's" and to observe that the Bowers majority opinion, contrary to the implication in Justice Kennedy's opinion, had not relied on "values we share with a wider civilization."15 His own implication was that, in contrast with Lawrence, the strength of Bowers was evident in the local ingredients that went into its making. …