Constitutional Comparisons: Convergence, Resistance, Engagement

Abstract

References in Roper v. Simmons (1) to foreign and international law--as relevant but nonbinding sources (2)--are in important respects a return to traditional methods of analysis, dating back to the Court's earliest discussions of the Eighth Amendment. In 1879, the Court rejected a challenge to a sentence of death by shooting in the Utah Territory in part because [c]orresponding rules [that] prevail in other supported the practice. (3) Thereafter, the Court in many cases likewise considered foreign practice in resolving cruel and unusual punishment challenges. (4) In 1989, Justice Scalia sought to overcome this interpretive tradition, asserting that only U.S. practice should be considered in making threshold determinations of what is cruel and unusual. (5) But as prior case law suggests, it is Justice Scalia's view--that the practices of other countries are irrelevant to understanding American conceptions of decency (6)--that is anomalous and properly rejected in Roper. Outside Eighth Amendment cases, references to foreign and international sources occur episodically in constitutional decisions throughout the Court's history. (7) Although the Court does not discuss foreign or international law as much as some other national courts, references in Lawrence v. Texas (8) and Grutter v. Bollinger (9) can also be seen as returning to prior practice: for example, between 1949 and 1970, opinions of Supreme Court Justices referred to the Universal Declaration of Human Rights on several occasions. (10) As suggested above, the Eighth Amendment's interpretive history supports the majority's use of foreign and international law in deciding what is cruel and unusual. Past practice, however, is only a partial answer to debates over whether transnational law should be considered in resolving questions of U.S. constitutional law, debates linked to a broader set of disagreements about constitutional interpretation. Part I below argues more generally that considering foreign and international law within a framework of learning by engagement--assuming neither convergence nor disagreement--is a legitimate interpretive tool that offers modest benefits (and fewer risks than current debate suggests) to the processes of constitutional adjudication. Part II makes preliminary suggestions for standards of inquiry in using comparative law in constitutional adjudication and raises cautions about the difficulties of developing contextually accurate understandings of foreign law. I. CONSTITUTIONS AND THE TRANSNATIONAL: THREE MODELS Although references to foreign law go way back in U.S. constitutional history, there is considerably more to refer to now. Before World War II, other countries offered experience in governance, but much less in the way of justiciable constitutional law. An era of human rights-based constitutionalism was born in the global constitutional moment that followed the defeat of Nazism, producing international human rights law and more tribunals issuing reasoned constitutional decisions. Sources of law from beyond U.S. boundaries continue to grow. While some are binding (such as ratified treaties), others are plainly not, including the domestic constitutional law of foreign countries, which nonetheless some national courts find relevant as persuasive or relational authority. (11) The U.S. Supreme Court has gone from being one of the only to one of many constitutional courts in the world, a change producing both opportunities for common learning and occasions for anxiety. As Chief Justice Rehnquist extrajudicially commented, now that constitutional law is solidly grounded in so many countries ... it's time the U.S. courts began looking to the decisions of other constitutional courts to aid in their own deliberative process. (12) The question is not whether but how constitutional adjudication responds to this growing corpus. A. The Models At least three models might broadly describe the relationships between domestic constitutions and law from transnational sources. …

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