The death penalty and the debate over the U.S. Supreme Court's citation of foreign and international law.

Author:Segal, Yitzchok


Is it appropriate to use foreign and international law to interpret the United States Constitution? Should the United States Supreme Court be permitted to cite foreign and international law in interpreting the U.S. Constitution? (1) These questions have generated much interest and controversy. While many justices and commentators endorse citations to foreign and international law, others have argued that it is inappropriate to interpret the U.S. Constitution based on non-U.S. law. (2)

Indeed, the appropriateness of using foreign and international law in interpreting the U.S. Constitution is arguably the most controversial jurisprudential issue in recent years. It has invoked impassioned rhetoric and violent death threats aimed at Justice Ginsburg and former Justice O'Connor (3) and has spawned an impressive, ever-growing body of literature comprised of articles by justices, (4) legal commentators, (5) and journalists. (6) Outside the pages of the Court's official reporter, several Justices have spoken publicly about the proper role of comparative legal materials in U.S. constitutional interpretation. (7) For instance, in a rare public debate, Supreme Court Justices Stephen Breyer and Antonin Scalia argued the merits of citing foreign and international law in the Court's opinions. (8) Recently, at the nomination hearings of Justices John Roberts and Samuel Alito, senators fired questions at the candidates regarding the role of comparative legal materials, probing them to publicly announce their views on this explosive issue.(9)

Perhaps most strikingly, citations to foreign and international law by U.S. courts have provoked the proposal of a congressional resolution stating that "judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions...." (10) Similarly, the Court's citations to comparative legal materials have provoked the proposal of a bill by several senators stating that in interpreting the Constitution, a court may not rely on "any constitution, law, administrative rule, Executive Order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law." (11)

The Supreme Court's use of foreign and international law in interpreting the Constitution is not itself revolutionary; throughout its history, the Court has freely drawn on supranational law. (12) Thus, it is not the Court's mere use of comparative legal sources that has sparked the recent debate, it is the context of these references. The Court has recently cited foreign and international law to support key positions in high-profile cases dealing with hyper sensitive domestic issues, including the death penalty. (13) The Court has more than once abrogated its holdings in prior decisions, in part due to foreign and international law. (14) These references seem to indicate a conscious movement toward a transnational adjudication model and have impelled the dramatic controversy over the relevance of foreign and international law in U.S. constitutional interpretation. (15)

The Supreme Court is sharply divided into two opposing factions regarding the function of comparative legal sources in the U.S. legal system. (16) Within the past two decades alone, the relevance of comparative legal sources in U.S. constitutional interpretation has been contested, at times quite heatedly, in eight Supreme Court cases. (17)

The split among the Supreme Court Justices has primarily occurred along the liberal/conservative ideological divide--liberal-minded Justices tend toward the internationalist camp while conservative-minded Justices tend toward the nationalist camp. For example, in the highly contentious Lawrence v. Texas decision, Justice Kennedy led a majority of the Court in holding that a Texas statute making it a crime for two persons of the same sex to engage in certain sexual conduct was unconstitutional as applied to two adult males who had privately engaged in consensual sodomy. (18) The Lawrence holding overruled the Court's prior decision in Bowers v. Hardwick. (19) In support of its decision, the majority noted that the European Court of Human Rights has not followed Bowers and that "[o]ther nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct." (20) Countering Kennedy's majority opinion, Justices Scalia, Rehnquist, and Thomas filed a dissenting opinion vigorously objecting to the majority's citations of comparative law. (21) The dissent denigrated the majority's citation of foreign law, labeling it "meaningless and dangerous dicta." (22) In support of its opinion, the dissent proclaimed that "this Court ... should not impose foreign moods, fads, or fashions, on Americans." (23)

This Comment examines the role that foreign and international law has played in the Court's death penalty cases. Part I of this Comment provides background and explains the relevance of foreign and international law in Eighth Amendment jurisprudence. Part II forms the core of this Comment and argues that, the sensational degree of controversy notwithstanding, foreign and international law have been peripheral to the Court's death penalty decisions. It demonstrates that in capital punishment jurisprudence, comparative materials function, if at all, merely as a minor consideration in a multifaceted analysis. It further argues that the Court develops, adopts, and sustains a "national consensus" analytical paradigm in its death penalty decisions and that this calculated paradigm severely constrains the judicial impact of these comparative materials. Part III of this Comment presents the position of death penalty abolitionists that the Court should grant foreign and international law supremacy over the national consensus and argues that this position runs counter to the Court's consistently sustained national consensus paradigm. Finally, Part IV of this Comment presents the view of several commentators that the judicial impact of foreign and international law on the Court has been exceptionally limited in all jurisprudential areas, a view that dovetails with the conclusions of this Comment.


    Eighth Amendment jurisprudence constitutes an area of law in which foreign and international legal materials have been invoked with great frequency. Indeed, citations to comparative legal materials have become a hallmark of Eighth Amendment jurisprudence.

    The suitability of comparative legal materials to Eighth Amendment jurisprudence derives from the Court's interpretation of that Amendment. The Eighth Amendment prohibits the imposition of "cruel and unusual punishment." (24) In two critical cases, Weems v. United States and Trop v. Dulles, the Court molded the Eighth Amendment, making it ripe for comparative legal analysis and prone to the citation of comparative legal materials. (25)

    Early in the twentieth century, the case of Paul A. Weems confronted the Supreme Court. (26) Weems falsified public records and was sentenced to twelve years of hard and painful labor, deprived of many basic rights, and subjected to a perpetual state of surveillance. (27) In a trail-blazing decision, the Court maintained that the constitutional clause "cruel and unusual punishment" must be defined in a dynamic manner based on society's ever-developing perceptions of civility. (28) The Court eschewed a static perception of "cruel and unusual punishment," stating that its definition is "not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by humane justice." (29) Under this interpretation of the Eighth Amendment, the Court held that Weems's severe penalty amounted to cruel and unusual punishment and was unconstitutional. (30)

    The Court built on its progressive holding in Weems in the landmark case of Trop v. Dulles. (31) Albert L. Trop, an American soldier serving in North Africa during 1944, was caught deserting the army and forced to stand trial. (32) A general court-martial convicted Trop of desertion and sentenced him to three years of hard labor, forfeiture of all pay and allowances, and a dishonorable discharge. (33) As a result of his dishonorable discharge, Trop was refused a passport and was thus effectively denied American citizenship. (34) Trop sought a declaratory judgment granting him citizenship and brought his case up the judicial ladder to the Supreme Court. (35)

    Chief Justice Warren led a plurality opinion holding that the imposition of denationalization for army desertion constituted cruel and unusual punishment and was unconstitutional. (36) Citing Weems as precedent, the Court maintained that the scope of "cruel and unusual punishment" is subject to change and encompasses punishments considered cruel and unusual by mankind's newfound sensitivities. (37) In Trop's oft-cited phrase, the contours of "cruel and unusual punishment" are determined by "the evolving standards of decency that mark the progress of a maturing society." (38) The Court found that the imposition of denationalization as a punishment violated society's evolving standards of decency and was therefore barred by the Eighth Amendment. (39) Trop thus firmly cemented the progressive interpretive principle that was launched and outlined in Weems: the meaning of the Eighth Amendment hinges on the standards of civility in contemporary society.

    Yet Trop did more than merely cement this progressive interpretive principle, it licensed the use of comparative legal materials in Eighth Amendment jurisprudence. In illustrating that the imposition of denationalization violates the Eighth Amendment, the Court invoked comparative legal materials as an index of society's standards of decency. (40) The Trop...

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