Citation of foreign decisions in constitutional adjudication: the relevance of the democratic deficit.

• Author: Kirby, Michael

A particular feature of the past fifty years has been the introduction of the post-war independence constitutions of many nations. The introduction of such constitutions in India, Pakistan, Ireland, Ceylon, and then many parts of Africa, Asia and the Caribbean, has resulted in the adoption of human rights provisions that sometimes reflect an international template. Quite often, such provisions, in repeated language, can be traced to earlier progenitors, including the english Bill of Rights of 1688, the Bill of Rights of the American Constitution after 1791, and the Universal Declaration of Human Rights of 1948. (1)

To many judges in national courts, faced with cases for decision involving the meaning of their own constitutional charters of rights, it has often seemed appropriate and useful, over recent years, to reach for the exposition of analogous problems written by judges and decision-makers in the courts of other countries, in international or regional courts and other bodies, grappling with similar problems. Doing so has not generally been viewed as evidencing any illegitimate loyalty, or deference, to nonbinding texts. Still less has it been seen as exhibiting obedience to the legal norms of other countries or the international community, or to the opinions of judges and others outside the legitimacy of the municipal court hierarchy. instead, reference to such elaborations has occurred because such expositions have been found helpful and informative and therefore useful in the development of the municipal decision-maker's own opinions concerning apparently similar problems presented by the municipal constitution or other laws.

1. United States Case Law

   None of the foregoing statements would be regarded as strongly contestable or even controversial in any common-law country, or indeed in most civil-law countries, save for the United States of America and Australia. In both of the latter countries, for some similar and some different reasons, strong opinions have been expressed, antagonistic to any such references to foreign material in construing the provisions of the national constitution. This attitude has been evident in the United States, with respect to Bill of Rights provisions, such as the provision forbidding "cruel and unusual punishments." (2) This expression was itself derived from the English Bill of Rights and was later adapted in the Universal Declaration of Human Rights (3) and in the International Covenant on Civil and Political Rights. (4)

   In a series of United States decisions involving constitutional questions, Justices of the Supreme Court have referred to provisions of international and foreign law and, in explaining their conclusions, occasioned such an antagonistic response from other members of the Court, both in their reasons (5) and in extra-curial writing (6) that a large public explosion of vituperation occurred. This was directed at the allegedly foreign-law-friendly Justices, culminating both in reported death threats directed at some of them and even the introduction of purported legislation, designed to make it an impeachable offense for a federal judge to base a decision on foreign law. (7) Thus, section 201 of the proposed Constitution Restoration Act states:

   In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, executive order, directive, policy, judicial decisions or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law. (8) Commenting on this bill, a United States Senior District Judge observed:

   Aside from its grammatical incompetencies, the proposed Act does not define what it means by 'constitutional law' and 'English common law'.... As for the English common law, one would need to tread softly. Most American states included within their constitutions or statutes a provision that the common law that can be considered of full force stops as of March 24, 1607: the day the last ship sailed from England to what would become the lost colony of Jamestown, Virginia. I would dare not cite the Statute of Frauds which was enacted by the British Parliament in 1677. A host of other precedents, such as the McNaghten Case, would be swept away from the American lexicon. I think the point is made that this proposed statute is utterly stupid. In the unlikely event that Congress would enact the Constitution Restoration Act, it would not be enforceable and the first court to review it would likely strike it down without having to rely on any foreign law.... [B]eyond the xenophobic blindness of this proposed legislation, a more insidious danger lurks. We cannot afford to ignore outrageous demonstrations of ignorance such as the canard that the Holocaust never happened nor the instant one which presumes that the fundamental law of the United States can be understood without reference to the history of western civilization. (9) The decisions of the Supreme Court of the United States, in which strong exchanges have occurred between the participating Justices over the references to foreign and international law in constitutional adjudication, include Atkins v. Virginia, (10) Lawrence v. Texas, (11) and Roper v. Simmons. (12) As these decisions are recent and familiar, I will not repeat them or revisit their content once again. (13)

   Because of my own sexuality, I naturally read with the closest attention the decision of the Supreme Court in Lawrence, which reversed the earlier holding of the Court in Bowers v. Hardwick. (14) The Supreme Court in Lawrence invalidated a Texas law criminalizing sodomy between adults of the same sex, even if consenting and in private. The Lawrence court not only overruled Bowers, it declared that the decision had been wrong when decided. No mention had been made in the Bowers opinion to the decision of the European Court of Human Rights, issued five years earlier in Dudgeon v. United Kingdom. (15) That decision had rejected similar statutory prohibitions in the law of the United Kingdom applicable in Northern Ireland. The European Court held that such laws constituted a violation of the right to privacy guaranteed by the European Convention on Human Rights. The assertion by the majority of the Supreme Court in Bowers that the sodomy law reflected ancient and universal values of civilized states would have been at least subjected to some doubt and heightened scrutiny if a reference to the then recent decision of the European Court had been made and considered.

   Writing for the Supreme Court in Lawrence, Justice Kennedy took note of the European Court's decision, declaring, "To the extent Bowers relied on values we share with the wider civilization, it should be noted that the reasoning and holding in Bowers has been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom." (16)

   At the conclusion of his opinion for the Court in Lawrence, Justice Kennedy went on to explain most eloquently how the concepts expressed in the United States Constitution have themselves evolved, just as the modern standards of decency and justice do in every civilized country:

   Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (17) Reasoning of this kind produced not only strong reactions in the Congress and various civic groups; it also elicited extremely angry words from judicial dissentients. Thus, in Lawrence, Justice Scalia complained that the "Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed," and that the majority opinion is "the product of a law-profession culture that has largely signed on to the so-called homosexual agenda." (18) In Roper v. Simmons, Justice Scalia again expressed his contrary opinion most forcefully: "[T]he basic premise of the Court's argument--that American law should conform to the laws of the rest of the world--ought to be rejected out of hand." (19)

   Foreign readers of these exciting exchanges might conclude that the more temperate views of the majority Justices had the better of the argument. Thus, in Roper, Justice Kennedy remarked: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." (20)

   Justice O'Connor, whilst dissenting and herself more cautious about the use of foreign law, was defensive about its occasional utility: "[W]e should not be surprised to find congruence between domestic and international values ... expressed in international law or in the domestic laws of individual countries." (21)

   The fact remains that, after the sharp exchanges in the Supreme Court and in the Congress up to 2005, the reliance upon foreign and international legal materials in constitutional decisions of the Supreme Court appears to have receded. Perhaps no one thought that any of the foreign analogies presented to the Court were sufficiently close and useful to warrant their mention. This would seem surprising when one remembers that the Court has had to grapple during the past four years with important questions of fundamental principle and values in a number of cases involving detainees in Guantanamo Bay and elsewhere.

   Perhaps those Justices who are inclined to inform their minds about reasoning on common problems, expressed in...