In his dissent in Roper v. Simmons, Justice Antonin Scalia bemoaned the "brave new meaning" that the Court had given the Due Process and Equal Protection Clauses and, by implication, the Eighth Amendment. (1) One of his principal complaints about the majority opinion, holding that the Eighth Amendment prohibits imposition of the death penalty on a person below the age of 18 at the time of an offense, was its reliance on foreign and international law to reinforce its conclusion that such punishment was "cruel and unusual." Justice Scalia's reference to "brave new meaning," implicitly invoking the negative utopia of Aldous Huxley's famous novel, (2) is of a piece with his position that constitutions are designed to "obstruct modernity," (3) that the "new" is irrelevant to interpreting the written constitutional text. Huxley's sarcastic title for his dystopic novel was, however, drawn from a more ambiguous reference in Shakespeare's The Tempest. (4) Brought up on a deserted island with only her father and his servant, Miranda falls in love with Ferdinand, who is washed ashore by a terrible storm created by her father; upon meeting others from Ferdinand's ship also washed ashore, she exclaims, "Oh brave new world, that hath such creatures in it!" (5) Miranda's statement can be read as one of exultation and celebration of the entrance of foreigners onto her isolated island, even as those with more knowledge can see the darker side of some of these strangers.
Whether one is inclined to exult or bemoan the occasional references to foreign or international law found in recent Supreme Court cases, one thing is clear: references to foreign or international law in the Supreme Court's constitutional jurisprudence are not new. Rather than being a brave or bold departure from established norms of interpretation that exclude their use, references to foreign or international law have played, episodically, a small role in many of the Court's most important opinions over time--sometimes being used to support propositions in dissent in cases subsequently overcome by constitutional amendment or different doctrine, (6) sometimes being cited to support holdings that would be eschewed or qualified today. (7) Although objections to the consideration of foreign or international law have been raised on grounds of national sovereignty, democracy, and the need to cabin judicial discretion, (8) none of these concerns should rule out all such references, whose long history is the starting point for traditionalist analysis of their appropriate use in interpretation.
This essay is an expanded version of a talk I gave at an excellent panel discussion sponsored by the Federalist Society at Columbia University Law School in February 2006 on "Foreign and International Law Sources in Domestic Constitutional Interpretation." Part I argues that the use of non-binding foreign law in constitutional jurisprudence is not a novel form of judicial activism but, rather, a part of the interpretive traditions of the Court evident in many of its most important decisions. Use of foreign or international law is, however, demanding: it is easy to err in our understandings of the foreign; and many U.S. constitutionalists have not been trained in international or comparative law. (9) Part II tries to identify some differences between foreign and international law that may be relevant to their use in domestic constitutional interpretation. Finally, Part III responds briefly to the argument made by Professor Steven Calabresi in his comments on the panel and in a paper published elsewhere that American exceptionalism is a reason not to consider foreign and international experience. (10) To the contrary, I suggest that, if the United States is to be a "City on a Hill," a leader in the protection of human liberty and freedom (a goal that at times seems increasingly distant), (11) we must understand the contours of the terrain around us.
FOREIGN LAW IN THE COURT'S CONSTITUTIONAL JURISPRUDENCE: THE MISSING SEGMENT OF JUSTICE JACKSON'S YOUNGSTOWN CONCURRENCE
Notwithstanding the furor over the Court's reliance on foreign and international law in Roper and Atkins v. Virginia, (12) the history of constitutional adjudication in the U.S. Supreme Court reveals episodic references to foreign law, (13) often relating to the constitutionality of punishments or penalties. In January 1867, for example, the Court referred to both a contemporary French code and older English law in deciding whether a Missouri state law imposed a "punishment" in violation of the Constitution's Article I, Section 10 ban on ex post facto laws or bills of attainder. (14) In his opinion, Justice Field discussed English law at some length and also wrote that:
In France, deprivation or suspension of civil rights, or of some of them, and among these of the right of voting, of eligibility to office, of taking part in family councils, of being guardian or trustee, of bearing arms, and of teaching or being employed in a school or seminary of learning, are punishments prescribed by her code. (15) Foreign practice was relied on to support the Court's conclusion that the Missouri law, though characterized otherwise by the state, was sufficiently punitive to be in the nature of an ex post facto law or bill of attainder and thus prohibited by the Constitution.
One of the Court's earliest decisions on the merits of an Eighth Amendment issue also provides an example of reliance on foreign law, this time to sustain rather than to invalidate a law. In Wilkerson v. Utah, the Court in 1879 rejected a challenge to the particular method by which a death sentence was carried out, holding that death by shooting did not constitute "cruel and unusual punishment" of the sort prescribed by the Eighth Amendment. (16) In so doing, the Court referred to the "[c]orresponding rules [that] prevail in other countries," noting in particular that England permitted death by shooting for murder and other crimes. (17) In Eighth Amendment cases challenging a particular kind of punishment as cruel and unusual or challenging a particular punishment for a particular crime as cruel and unusual, (18) it is not new for the Court and its members to refer to other countries' legal practices as one source of information relevant to the determination of whether the punishment passes constitutional muster. The Court has done so in at least one case treating the foreign origin of a punishment as bearing on its unacceptability in the United States, (19) and in other cases referring to the practices of other "civilized nations" to support the Court's conclusion that a particular punishment (for example, statelessness) (20) or the use of a particular penalty for a particular crime (for example, the death penalty for rape of an adult) (21) was constitutionally prohibited.
This line of decisions extends from the late nineteenth century through 1988. (22) In 1989, Justice Scalia, writing for the Court in Stanford v. Kentucky, (23) sought to cabin more tightly consideration of foreign law in Eighth Amendment cases, along lines he had proposed in a dissenting opinion the year before. (24) The attempt, however, was apparently short-lived--not surprising in light of the long prior history of the Court's considering foreign practice in Eighth Amendment cases. Throughout the 1990s, other Justices on occasion invoked foreign law in dissenting from denials of certiorari. (25) By 2002 the Court had returned to its prior practice of considering foreign and international law not as a primary factor but as a relevant consideration in resolving Eighth Amendment challenges and without explicit regard to the standard set forth in Stanford. (26)
Reference to foreign and international law has not been limited either to decisions of the earliest period in our history or to cases involving Eighth Amendment issues. Indeed, many American lawyers (and perhaps even some law professors) are unfamiliar with important opinions on the Court's history that included discussion of foreign law, perhaps because of the way in which cases are edited for inclusion in casebooks. A powerful example is found in Justice Robert Jackson's deservedly famous concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer. (27) This opinion is excerpted in each of the twelve constitutional law casebooks that I checked, including those regarded as leading books in the field. (28) With few exceptions, (29) these excerpts omitted the discussion of foreign constitutional law that Justice Jackson introduced in the following terms:
I do not think we rightfully may so amend [our forefathers'] work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. Their experience with emergency powers may not be irrelevant to the argument here.... (30) In the two-page discussion that followed, Justice Jackson examined German, French, and British history and constitutional practice in the period leading up to and during World War II. First, he described how the Weimar Constitution in Germany--though framed, as Justice Jackson noted, to "secure her liberties in the Western tradition'--permitted the President of the Republic, without the concurrence of the national legislature, to declare a state of emergency in which all individual rights could be temporarily suspended. (31) That power, as Justice Jackson described it, "proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored." (32)
Second, Justice Jackson explained that the law of the Third French Republic in the period before World War II provided for a very different kind of emergency known as the "state...