This Article is about the epistemic significance of international consensus on constitutional interpretation in the Eighth Amendment context. First, this Article examines whether meaningful conclusions about one's desert judgments can be reached through a process of interjurisdictional comparison that focuses on the existence of a consensus on the question of what punishment is appropriate for what crimes and criminals. Second, this Article examines the relevance of international consensus on penal practices by analogizing the consensus to three different types of consensus: scientific, aesthetic, and moral. This Article concludes from this discussion that so long as the Supreme Court stays with what this Article calls the "norm-centric analysis" in consulting foreign sources, the existence of an international consensus on a penal practice should not lead us to lean one way or the other about its constitutionality under the Eighth Amendment. This Article then argues that the Court, given its judicial minimalist tendencies, is unlikely to go beyond its norm-centric mode of analysis and also that abandoning the norm-centric analysis would counsel against consulting types of foreign legal materials, such as international human rights treaties, that do not reveal reasons behind the norms that they endorse. This Article ends by exploring both broader implications and limits of arguments made in this Article for the judicial borrowing debate.
INTRODUCTION I. THE SUPREME COURT'S USE OF FOREIGN LEGAL MATERIALS IN THE PROPORTIONALITY JURISPRUDENCE II. PROPORTIONALITY AND INTERNATIONAL CONSENSUS A. The Eighth Amendment As a Retributivist Constraint B. Desert Comparisons Across Jurisdictions III. CRUELTY AND INTERNATIONAL CONSENSUS A. What Kind of Cousensus? B. Scientific Consensus C. Aesthetic Consensus D. Moral Consensus IV. NORMS AND REASONS A. Judicial Minimalism and Foreign Law B. Costs of Focusing on Reasons CONCLUSION INTRODUCTION
After the Supreme Court declared the juvenile death penalty unconstitutional under the Cruel and Unusual Punishments Clause of the Eighth Amendment (1) in Roper v. Simmons, (2) one aspect of the decision has dominated the scholarly commentary on Roper: the Court's partial reliance on prevailing international norms and practices of foreign countries. (3) The debate over the relevance of comparative and international legal materials to constitutional interpretation is not new, (4) but it has intensified in recent years after the Court's citations of foreign sources in such high-profile and controversial cases as Roper, Lawrence v. Texas, (5) and Atkins v. Virginia. (6) Justices disagree with each other sharply on this issue both in judicial opinions (7) and in other public fora, (8) and similar debates took place during the confirmation hearings of Chief Justice John Roberts (9) and Justice Samuel Alito (10) and in measures introduced in Congress to condemn the practice of citing foreign laws. (11)
The size of academic literature on the relevance of foreign laws question has quickly grown in the past several years and continues to grow. (12) Most of these commentaries, generally from international law or constitutional law scholars, tend to be top-down. They explore the question of whether foreign or international laws should be relevant to constitutional interpretation as a general theoretical matter, starting either from theories of constitutional interpretation or from debates about the domestic legal status of international laws, and then apply such general considerations to specific contexts like the Eighth Amendment or the Fourteenth Amendment.
Much insight has been gained from this academic literature. For instance, the debate over whether the practice of citing foreign laws is a recent doctrinal invention or something that has always been with us is over. The practice is not new; it is indisputable that the Court has engaged with foreign sources in the past. (13) Next, it is also an undeniable fact that judges from all over the world are talking to each other on common issues, sometimes through opinions, sometimes in international courts and tribunals, and other times in more informal venues, such as seminars and conferences. (14) The normative significance of such transnational dialogues may be in dispute, but no one can deny that such dialogues are increasingly common. As to the debate over whether the Court is treating foreign laws as "binding" or "authoritative," or merely "persuasive," "instructive," or "confirmatory," it seems that we are at a standstill. This particular debate is like two ships passing each other at night. One side accuses the Court of giving up our sovereignty; the other side simply denies it with a shrug, as if wondering why anyone would ever think such a silly thing. (15)
We have reached a point in the debate where no further advance seems likely so long as we continue to speak in general terms about the desirability of citing foreign laws. This Article thus proceeds in the opposite direction with a new focus. Instead of going top-down from theories of international law or constitutional interpretation to an interpretive claim about the Eighth Amendment, this Article starts at the opposite end--the Eighth Amendment--and works toward the issue of the relevance of comparative and international materials in constitutional interpretation. In other words, this Article takes as its starting point the question Roper asked--whether the juvenile death penalty is unconstitutional under the Cruel and Unusual Punishments Clause of the Eighth Amendment--and then asks whether the practice of looking overseas can illuminate the juvenile death penalty issue and, through extension where appropriate, other domestic constitutional issues. And in doing so, this Article focuses in particular on the significance of international consensus as persuasive authority in the Eighth Amendment. If, as the Roper Court stated, "the United States is the only country in the world that continues to give official sanction to the juvenile death penalty," (16) should such an international consensus carry any persuasive weight in judging whether the juvenile death penalty is unconstitutional under the Eighth Amendment?
This Article argues that, contrary to conventional wisdom held by several Supreme Court Justices and many legal scholars, the answer to this question is no. In understanding this claim, however, it is important to be clear that the key concept here is that of persuasiveness or instructiveness. One of the reasons why much of the current debate over the question of judicial borrowing of foreign laws has the flavor of people talking past each other is that there is no agreement on what is to be justified or criticized. For instance, foreign authorities may be thought to be binding, the way Supreme Court precedent is binding on lower courts. Almost nobody defends this view. Or, foreign authorities may be thought to be relevant. But "relevance" is a concept that confuses more than illuminates, as it occupies the large area between "dispositive" and "worth mentioning." (17) A quote from a Shakespeare play may sometimes be "relevant" in a judicial opinion in some weak, uncontroversial sense. A fortiori, no one can deny the relevance of foreign legal materials that seem to address the issue at hand, if "relevance" is defined weakly enough. Much time is wasted in the judicial borrowing debate because opponents attack the view that almost nobody defends ("binding"), and proponents respond by defending the view that nobody attacks ("relevant"). (18)
A further difficulty here is that we cannot theorize about the proper relationship between domestic constitutional law and international norms without agreeing on an account of the relevant domestic doctrine in the first place. For instance, if it is the case that the meaning of the Cruel and Unusual Punishments Clause can be ascertained by referring to what practices were considered cruel and unusual by founders at the time the Clause was enacted, then the question of whether current foreign sentiments are relevant to constitutional interpretation is of course beside the point. Or, if it is the case that the Clause asks only a question of, say, cost-effectiveness in administration of the criminal justice system, then it obviously makes sense to see whether other countries have come up with less costly or harsh ways of combating crime. (19) These are not, however, the ways in which the Eighth Amendment is commonly understood. (20)
More plausibly, if the correct understanding of the Cruel and Unusual Punishments Clause is to conform to prevailing international norms because the Clause calls for disfavoring "unusual" punishments, then of course it is the case that foreign sources must be taken into account in interpreting the provision. Foreign laws, used this way, do not act as binding precedent but rather partially constitute the substance of the Eighth Amendment itself. Some have defended the use of foreign legal materials in the Eighth Amendment context precisely on this basis. (21) Regardless of the merits of this reading of the Eighth Amendment, this type of argument can further obscure the judicial borrowing debate as it blurs the distinction between the idea that foreign laws are helpful or instructive in interpreting our law and the idea that foreign laws are constitutive in that they at least partially determine what our law is through incorporation.
This Article focuses on the question of whether international consensus should be treated as persuasive in the Eighth Amendment context and does not address the questions of whether it should be considered binding or constitutive. The reason I focus on the question of persuasiveness is that the practice of citing foreign authorities is most often defended on that basis (22)--perhaps because it is commonly believed that the argument that foreign authorities can be...