Constitutional interpretation through a global lens.

• Author: Glensy, Rex D.

1. INTRODUCTION

   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." (17)

   Part II of this Article shows that this important issue has been largely ignored by the current academic debate. It then proposes a way to explore the question systemically, which is to contextualize the process of constitutional comparison. Thus, the Article examines the respective policy motivations of the international system and domestic governance to determine whether a reasonable convergence between the two exists that justifies the use of international law within the framework of constitutional interpretation. Part III then looks at the normative underpinnings of the international legal system. It does so through a lens consisting of the ethos of the comparative enterprise that is one of shared experience and that takes its motivating impulse from Neo-Kantian ideational forces. Part Iv examines the various factors behind domestic ordering of political structures. It separates domestic democracies from other types of domestic systems because of the inherent unreliability of purpose that underlines the choice of process and substance of the latter. Finally, Part v marries the policy rationales explored in Parts III and Iv. It concludes that international law, as a matter of principle, is an appropriate repository into which a judge can dip to interpret domestic constitutional provisions. However, not all international law is appropriate for this purpose, and this final section of the Article explains that only international law born out of policy goals that overlap with those of domestic systems should be used in the context of constitutional interpretation.

   Promoters of this method of constitutional interpretation do not advocate the supplanting of local precedent by persuasive authority, be it foreign or international. In other words, this is not a search for other forms of mandatory authority to impose on the American people--any assertion by the critics of this enterprise to the contrary is a straw man. Indeed, American judges are the primary interpreters of the U.S. Constitution in American jurisdictions, and consequently are the guardians of the rule of law and definers of the contours of rights in the United States. Nevertheless, one should always bear in mind the immortal wisdom of U.S. Supreme Court Justice Benjamin Cardozo, who opined almost one hundred years ago that "[w]e are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home." (18)

2. THE DILEMMA CAST

   The international law dilemma within the context of constitutional interpretation has been largely ignored by academics. Nevertheless, this dilemma has not gone completely unnoticed. Some scholars who write on the general topic of comparative constitutionalism distinguish between international law (the law of supranational governance) and foreign law (the domestic law of a foreign country). (19) For example, Eric Posner and Cass Sunstein tangentially address the issue in the context of presenting a theoretical basis for the use of non-U.S. persuasive authority. (20) They note that "[t]he literature has so far not made much of [the] differences" between foreign domestic sources and international law, and "where it has, most authors have treated international law as deserving of the same consultation that foreign national law deserves." (21) Posner and Sunstein specify that the Lawrence decision "did not cite 'foreign law,' in the sense of a decision of a foreign national court interpreting a foreign statute or constitution," but rather "it cited international law, in the sense of an international court interpreting an international treaty." (22) However, after correctly identifying the dilemma, Posner and Sunstein offer a summary conclusion that "the case for relying on international law is trickier than the case for relying on foreign law." (23)

   This dilemma over the use of international law is not totally ignored abroad. Indeed, the differentiation between foreign law and international law as different sources of authority is enshrined in the South African Constitution, which directs that all courts within that nation tasked with interpreting the Bill of Rights "must consider international law" (24) and "may consider foreign law." (25) Thus, the judicial canon of constitutional interpretation in South Africa directs the use of international law in all instances when such materials are available and germane to a question of interpretation of that country's Bill of Rights, but leaves the discretion to the courts to employ foreign domestic law. Justices from other high courts around the world have similarly commented on the difference between the two sources of law when used to aid constitutional interpretation and have noted how this difference plays out in actual decisions of such foreign high courts. (26) It is noteworthy that in all these situations, international law is never considered part of the "foreign law" category, unlike in the U.S., where the nomenclature "foreign" is often applied to include international law. To include international law is ironic, and somewhat of a misnomer on the part of those employing the term "foreign" in the U.S., because international law is technically not "foreign" at all but instead is part of U.S. law. Indeed, international law is formed through consistent and persistent input by the U.S. and therefore, in many respects, mirrors the domestic values of the United States. Therefore, international law is easily distinguishable from true foreign law.

   The same school of thought that opposes comparative constitutionalism outright seems to be responsible for the conflation of international sources and foreign domestic sources as subjects for constitutional interpretation. (27) This mindset is grounded in the outdated notion of the Westphalian system, which essentially views nation-states as the sole subjects of international...