Law's migration: American exceptionalism, silent dialogues, and federalism's multiple ports of entry.

• Author: Resnik, Judith

ARTICLE CONTENTS I. SETTING BOUNDARIES A. Positioning the "Foreign" and the Judge B. Introducing the Many Iterations of Federalism II. CLAIMING EXCEPTIONALISM: THE OPPOSITION TO AND THE INFLUENCE OF THE "FOREIGN" ON AMERICAN LEGAL RULES A. The Double Entendre of the "Domestic" 1. The Trade in Abolition 2. Transcontinental Feminists B. Jurisdictional Seepage 1. Dignity Becomes an American Constitutional Right 2. Aliens, Equality, and the United Nations Charter C. Fifty Years of Fighting the United Nations III. THE LOGIC OF SILENCE AND OF IMPLICIT DIALOGUES A. Taxing Adjudication by Challenging Transnational Constitutionalism B. Licensing References and the Customs of Lawmaking 1. A Variety of National Practices 2. American Federalist Possibilities IV. MULTIPLE PORTS OF ENTRY A. State Jurists Making International Norms State Law B. Local Plebiscites, Both Expressive and Self-Obliging 1. Reconceiving the Rights of Women: Local Embrace of CEDAW a. Federalist Objections to CEDAW at the National Level b. National Action Gaining Support for CEDAW at the Local Level 2. Sharing the Environment: The Mayors' Adaptation of the Kyoto Protocol C. Domesticating the "Foreign": The International Programs of the National Organizations of Governors, Mayors, and Cities D. The Legality of Local Transnationalism: Domestic and Foreign Affairs V. IMPORTING AND EXPORTING A. Changing the United States or CEDAW? B. Proliferating Longstanding American Anti-Trafficking Methods VI. THE RISKS OF ROMANTICIZING THE LOCAL AND THE FOREIGN I. SETTING BOUNDARIES

1. Positioning the "Foreign" and the Judge

   Many countries have politicians who invoke anti-foreign rhetoric in their efforts to garner votes. Some American politicians have embraced this strategy, as can be seen from the Constitution Restoration Act of 2004, which would require that:

   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 decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law. (1) A parallel proposal proclaims that the "American people are rightfully entitled to be governed by the Constitution, not as amended by judges through the process of 'transjudicialism.'" (2) That provision would instruct federal judges not to "employ" non-United States law, other than the English common law extant when the Constitution was drafted. (3) As that resolution's negative reference to judicial amendment of the Constitution also suggests, (4) "sovereigntist" hostility to foreign and international law is often intertwined with particular views about the Constitution, the role of judges in expounding its content, and the American political project in general.

   Legislators opposed to the use of "transjudicialism" have counterparts on the Supreme Court, where Justice Scalia serves as a central spokesperson for the sovereigntist position that the Court should not use "foreigners' views as part of the reasoned basis of its decisions." (5) He argues that judges are "not some international priesthood empowered to impose upon our free and independent citizens supra-national values that contradict their own." (6) Justice Scalia is also identified with an interpretative method, called "originalism," that sends judges on a quest to find evidence of how Americans living at the time of the Constitution's creation might have understood its terms. (7) By also espousing an approach to statutes that focuses on text rather than on context, Justice Scalia argues that the judicial role can be limited to applying preexisting standards rather than developing new ones. (8)

   The sovereigntist model has a competitor: internationalism. Its roots can also be linked to the Framers' methods, but its proponents generally assume that interpretations of constitutional and statutory provisions should evolve, and they welcome learning from abroad. (9) Prominent internationalists, including Justices O'Connor, Kennedy, Ginsburg, and Breyer, have cited comparative or international sources and spoken about the desirability of broadening American understanding of non-United States law. (10) As Justice Kennedy explained in a majority opinion that mentioned legal sources beyond the home-grown, "[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge" that "other nations and peoples" affirm the same "fundamental rights." (11)

   A recent example of the disagreement is Roper v. Simmons, (12) which held unconstitutional the imposition of the death penalty on offenders who committed their crimes before the age of eighteen. (13) To understand what is at stake in citing or opposing foreign law requires knowledge of the jurisprudential alternatives. The majority in Roper read the Eighth Amendment as requiring the Court first to ascertain whether a national "consensus" had developed that a particular form of punishment was cruel and unusual and, second, to exercise its own "independent judgment" about whether that punishment was "disproportionate" for juveniles. (14) Only in the final segment of the majority opinion did international and comparative law play a significant role, (15) when the majority discussed the English Parliament's 1948 prohibition on the death penalty for juveniles as well as several international conventions that ban the practice. (16) The majority explained its decision to refer to "the overwhelming weight of international opinion" as "confirmation for" but not as "controlling" the correctness of its interpretation of the Eighth Amendment. (17)

   Justice Scalia's dissent, joined by Chief Justice Rehnquist and Justice Thomas, objected to the very mention of such sources. In characteristically aggressive prose, Justice Scalia asserted that

   [i]t is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War--and with increasing speed since the United Kingdom's recent submission to the jurisprudence of European courts dominated by continental jurists--a legal, political, and social culture quite different from our own. (18) His ire prompted Justice O'Connor (even as she too dissented on the merits) to distance herself from what she described as a claim that "foreign and international law have no place in our Eighth Amendment jurisprudence." (19) Rather, the "special character" of that part of the Constitution appropriately "draws its meaning directly from the maturing values of civilized society." (20)

   Why so much fuss about a few citations? Why did Justice Kennedy, not forecast at his confirmation hearings in the 1980s to be an agent provocateur, throw down the gauntlet by writing the trailing section of the Roper decision to highlight international and comparative law? Why did he and his colleagues invite more arguments than needed instead of pursuing a more minimalist approach? (21) And why do citations such as this prompt a campaign against references to the law of other jurisdictions, a custom that American jurists have used throughout our constitutional history and that jurists on many other high courts think noncontroversial? (22)

   The intensity of Roper is fueled by the four debates it entails: a first about the morality and legality of executing juveniles; a second about which legal actors (judges or legislatures) have the power to condemn or condone the practice; a third about which set of judges or legislatures (state or federal) have that power; and a fourth about what normative sources (national, local, or transnational) should be the basis for whatever rules are made. The effort to delegitimate the use of foreign law is, in short, part of larger battles about the role of judges in the American polity and the role of this nation in the world. The congressional proposals aimed at banning foreign law provide a window not only into nationalist but also into anti-judicial sentiments in America.

   Hostility toward adjudication is expressed through several pieces of legislation promoted by the party currently in control of both the Presidency and the Congress. Controls on judicial sentencing decisions, (23) limitations on access to habeas corpus, (24) and diminished judicial review of immigration proceedings (25) are already in place. In addition, the Bush Administration has consistently opposed judicial oversight of the treatment of detainees alleged to be threats to national security (26) and of the Executive's surveillance activities. (27) Further, judicial implementation of various liability rules are claimed to undermine American competitiveness. (28) Congressional proposals opposing specific judicial decisions (29) are a regular part of contemporary politics. The effort to derail transnational legal dialogues is a piece of this challenge to adjudication as an instrument of regulating the public and private sectors.

   Rejection of foreign sources is also aimed at shoring up the viability of this nation-state. One might have assumed that the need to press a unique national identity would correlate with the newness of a country, seeking to establish its own authority. Having one's "own" law can be a source of "pride," as William Fletcher explained when describing 1820s American lawyers speaking about a "distinctly American law merchant, different in significant respects from the international law merchant." (30) Yet, as is evident from the contemporary conflict, the aging of this country has not produced a relaxed approach to law from abroad. Moreover, one can find new polities (such as South Africa (31)) open to international norms.

   The argument against foreign sources often relies on the integrity of domestic democratic processes. (32) Faced with the claim that the ethics of human obligations deduced from philosophies of personhood transcend yet bind all...