Constitutional Interpretation Revisited: The Effects of a Delicate Supreme Court Balance on the Inclusion of Foreign Law in American Jurisprudence

AuthorDaniel J. Frank
PositionJ.D. Candidate, The University of Iowa College of Law, 2007; B.A., Carleton College, 2001.
Pages1039-1071

    Daniel J. Frank: I owe a special debt of gratitude to Professor Alexander Somek whose insight and guidance helped inspire this Note. I would also like to thank my editors for their hard work and comments on earlier drafts.

Page 1039

I Introduction

In 2003, the United States Supreme Court handed down a landmark decision in Lawrence v. Texas, holding that states cannot criminalize the consensual homosexual relations of adults in the privacy of the home.1 The Court determined that an individual's right to liberty under the Due Process Clause permits private sexual conduct without governmental interference.2The Court's conclusion in Lawrence assuredly protects gay rights, but it also signifies the first occasion where the Court openly "cited foreign case law in the process of overruling an American constitutional precedent."3 The second such occasion occurred two years later in Roper v. Simmons when the Court abolished the juvenile death penalty in the United States.4 This time, the Court majority concluded that the inclusion of foreign case law and international legal norms proved "instructive" for the interpretation of Eighth Amendment matters.5

These two recent Supreme Court decisions fuel a long-waged battle over the status of foreign and international law in interpreting the Constitution.6Lawrence and Roper may usher in a mode of constitutional jurisprudence more cognizant of a "world increasingly united by globalization, democratization and the spread of universal human rights."7 However, the same Supreme Court dynamic that fostered the Lawrence and Roper decisions no longer exists because the delicate ideological balance of the Justices has shifted to the political right. The current composition of the Supreme Court may compromise the continued use of foreign law8 as persuasive authority on certain American constitutional issues.9 Page 1040

On July 1, 2005, Justice Sandra Day O'Connor announced her retirement from the bench after twenty-four years of service.10 The untimely death of Chief Justice William Rehnquist months later11 opened a second vacancy on our nation's highest court. The tenuous originalisttransnationalist12 Court equilibrium, with Justice O'Connor often serving as the all-important swing vote,13 tipped to the originalist side with President George W. Bush's replacement nominations and the corresponding Senate confirmation hearings.

The new judicial landscape may restrict the future use of foreign law to help interpret the Constitution. Resistance to this interpretive practice has pervaded the government since the controversial Roper decision came down in March of 2005.14 The response from Capitol Hill ranged from the introduction of specific legislation barring the use of foreign law15 to outright clamors for the impeachment of "activist justices"16 like Justice Page 1041 Kennedy, who authored the Roper majority opinion. The ensuing Supreme Court nominations further highlighted this trend.

President Bush nominated Judge John G. Roberts to succeed the Honorable William Rehnquist on the bench,17 and on September 29, 2005, Judge Roberts was officially sworn in "as the 17th Chief Justice of the United States."18 Sworn in at only fifty years old, Roberts is the "youngest Chief Justice since John Marshall was appointed in 1801, potentially giving him decades to shape the Court's direction."19 The Roberts Senate-confirmation- hearing transcripts illustrate the new Chief Justice's outlook regarding strict constitutional interpretation.20 On day two of the hearings, the Senate Judiciary Committee raised specific questions about the proper role of foreign law as an interpretive tool.21 Roberts voiced several concerns, which ranged from the possible "misuse of precedent" inherent in increased judicial discretion to the lack of accountability ascribed to foreign judges.22Fellow "[c]onservatives applauded [Roberts's] opposition to using international law to interpret the Constitution."23

According to Democratic Senator Dianne Feinstein, however, "'[t]he pivotal appointment'" was the replacement of centrist Justice O'Connor, who often provided a deciding vote in the face of more "reliably conservative" counterparts.24 The President's initial selection to fill Justice O'Connor's seat, White House Counsel Harriet Miers, withdrew her nomination before any confirmation hearing due to concerns over the depth of her conservatism25 and lack of judicial experience.26 President Page 1042

Bush's second replacement nominee, U.S. Court of Appeals Judge Samuel Alito, Jr., however, boasted an "extensive record of conservative rulings."27 A narrow Senate vote, coupled with a fruitless filibuster attempt by minority Democrats, resulted in the swearing in of Alito as the country's 110th confirmed Court Justice.28

Senate-confirmation-hearing transcripts are unclear regarding Alito's final position on abortion and other matters, but not with regard to the role of foreign law in American constitutional interpretation.29 When Senate Judiciary Committee member Senator Jon Kyl repeated the line of questioning posed during the Roberts confirmation hearing about the relevance, if any, of foreign law, the Third Circuit judge remarked: "I don't think that foreign law is helpful in interpreting the Constitution."30 Echoing Justice Scalia's public sentiments, Alito further stated: "We have our own law, we have our own traditions, we have our own precedents, and we should look to that in interpreting our Constitution."31

The debate over the relevance of foreign law in constitutional interpretation, which has divided the Supreme Court for years, must now be revisited. The new, originalist Court majority may challenge the transnationalist approach adopted by Roper and Lawrence. This Note argues that foreign law has a rightful place in American constitutional jurisprudence when fundamental rights common to the human experience are involved.32 Eighth and Fourteenth Amendment matters help preserve Page 1043 human dignity and therefore provide a model setting to consider foreign law as persuasive authority. Part II offers background to this argument by discussing the long-running debate over the Supreme Court's use of foreign law and explaining the relevance of past constitutional cases where foreign law has played some role.33 Part III presents two landmark decisions, Lawrence v. Texas and Roper v. Simmons, which demonstrate that reference to foreign-law norms as nonbinding, persuasive legal precedent helps to inform American decisions.34

Part IV demonstrates the extent to which originalist apprehensions-for example, that the reliance on foreign law internationalizes the Constitution to the detriment of the American justice system-are largely unfounded.35Part V argues that the rationale supporting the Court's use of an inclusive, interpretive approach is multifaceted: (1) the Founders intended that we respect foreign decisions and international law in general, (2) an increasingly globalized world calls for judicial comity, and (3) recognition of foreign law helps avoid undue friction with other nations that a more insular-type posture may invite.36

II Background
A The Nature of the Debate and Resultant Supreme Court Divide

The U.S. Supreme Court does not employ a unified approach when considering foreign law in constitutional deliberations.37 In fact, an ongoing debate pervades the Court with respect to whether the Court should Page 1044 consider foreign law when tackling American constitutional matters.38Consequently, the justices fall into distinct, opposing camps: those who advocate originalist or "nationalist jurisprudence," and those who promote "transnationalist jurisprudence."39 Because these divergent modes of thought inform precedent-setting opinions from our nation's highest Court, the two approaches merit separate consideration. A division over the "proper sources for judicial interpretation"40 lies at the heart of the debate.

Justice Antonin Scalia serves as the most vocal member and de facto leader of the originalist approach to constitutional interpretation, which purports to safeguard the literal meaning of the Constitution.41 According to Justice Scalia, proper constitutional interpretation calls for consideration of the Framers' intent at the time of the Constitution's adoption because the text's meaning has not changed since then.42 The rigid textual analysis of originalists contrasts with the more flexible approach hallmarked by transnationalists, like Justice Stephen Breyer, who do not view the Constitution as a...

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