Rex D. Glensy, the Use of International Law in U.s. Constitutional Adjudication

• Citation: Vol. 25 No. 1
• Publication year: 2010

THE USE OF INTERNATIONAL LAW IN U.S. CONSTITUTIONAL ADJUDICATION

Rex D. Glensy*

INTRODUCTION 198

1. POSSIBLE SOURCES OF INTERNATIONAL AUTHORITY 202

   1. International Law 202

      1. Treaties 204

      2. Customary Law 206

      3. Soft Law 208

   2. The Regional Law Dilemma 209

2. THE NORMATIVE UNDERPINNINGS OF COMPARATIVE ANALYSIS 210

   1. Globalization and Human Rights 212

   2. Similar Problems, Similar Backgrounds, and Similar Texts 216

   3. Coordinating a Transnational Legal System 218

   4. Judicial Dialogue 221

   5. Expanding Horizons 222

   6. Increasing Self-Awareness 227

   7. Impact on the Rest of the World 230

   8. Conclusion 234

3. PAST REFERENCES TO INTERNATIONAL LAW 235

   1. Eighth Amendment Cases 237

   2. Other Cases 241

4. A FRAMEWORK FOR THE USE OF INTERNATIONAL LAW 244

   1. A Note on Foreign Law 245

   2. The Three-Pronged Analysis 248

      1. International Dimension of the Problem 249

      2. Status of Law 254

      3. Position of the United States 262

CONCLUSION 266

* Associate Professor, Drexel University College of Law.

INTRODUCTION

The Constitution of South Africa mandates that its Supreme Court use international law to determine the substantive meaning of its own Bill of Rights.1 The Constitution of the United States does no such thing. Nevertheless, from time to time, the U.S. Supreme Court has taken it upon

itself to use international law as persuasive authority to interpret various provisions of the U.S. Constitution.2 Indeed, the Court has done so in very high profile cases such as Lawrence v. Texas,3 where the Court struck down a Texas anti-sodomy statute as an unconstitutional violation of due process;4 Roper v. Simmons,5 where the Court stated that capital punishment could not be

constitutionally applied to those who had committed crimes under the age of eighteen;6 and most recently, Graham v. Florida,7 where the Court ruled that sentencing a juvenile to life imprisonment without the possibility of parole for a non-murder crime was a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.8

The high visibility of the cases in which the Court has called upon international law to determine the proper meaning of certain domestic constitutional provisions has brought a lot of attention to this practice. Indeed, this issue has stirred up a lot of academic emotions (such as they are) as well as engendered a passionate response from Congress. It is the lack of a specific interpretative mandate in the U.S. Constitution that has functioned as the springboard for much of the commentary, mostly critical, from the legislative branch of government and academia alike. Much of this criticism boils down to a simple exhortation to abandon this practice altogether because its use

supposedly undermines democracy and the sovereignty of the United States.9

1. S. AFR. CONST., 1996 § 39(1)(b). The South African constitution also contains a provision suggesting (but not mandating) that foreign law be consulted in similar circumstances. Id. § 39(1)(c).

2. See, e.g., Steven G. Calabresi & Stephanie D. Zimdahl, The Supreme Court and Foreign Sources of

   Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 WM. & MARY L. REV. 743 (2005) (describing the long history of uses of non-U.S. law in the United States).

3. Lawrence v. Texas, 539 U.S. 558 (2003).

4. See id.

5 Roper v. Simmons, 543 U.S. 551 (2005).

1. See id.

2. Graham v. Florida, 130 S. Ct. 2011 (2010).

3. See id. (quoting U.S. CONST. amend. VIII).

4. See Michael D. Ramsey, International Materials and Domestic Rights: Reflections on Atkins and

   Lawrence, 98 AM. J. INT’L L. 69, 69 (2004). Other commentators have argued that the concept of “sovereignty” is “rooted in mistake.” LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 8 (1995) [hereinafter HENKIN, INTERNATIONAL LAW]. Henkin goes further to note that “sovereignty . . . is often a catchword, a

   However, this proposed abandonment appears unlikely to happen as it seems that for the foreseeable future the U.S. Supreme Court will be composed of a majority of justices who, in some way or other, favor this practice. Nevertheless, on a specific point, those who criticize the consultation of international law in cases dealing with the interpretative complexities of the

   U.S. Constitution make a valid argument: the way in which the U.S. Supreme

   Court pursues this endeavor is seemingly ad hoc and therefore lacks coherence, method, and context.10

   
   

   This Article seeks to address this latter category of criticisms and proposes a method for the selection of international law within the framework of U.S. domestic constitutional interpretation. Only a methodological consistency that springs forth from a reasonable theoretical background can begin to quell the anxieties of those who see this form of constitutional interpretative practice as

   a somewhat veiled (if not overt) threat to the foundations of the Republic.11

   Most importantly, a sound methodological approach to this contemporary practice of constitutional reasoning serves one of the most important goals of judicial rulemaking within a democratic framework: plausible predictability. If the accusations of haphazardness and self-interest that accompany the Court’s persuasive use of international law as a tool of constitutional interpretation can be set aside via adoption of a cohesive technique, then surely the whole enterprise would be perceived as standing on much firmer ground even by the critics.

   
   

   Within this context, it is important to differentiate between international law and foreign domestic law. Both of these sources can provide a valuable repository of authority for U.S. courts to consult when formulating a particular doctrine of domestic constitutional law. Indeed, courts regularly utilize both of

   these sources in this way.12 However, the separate scopes, underlying policies,

   and processes of enactment of each of these bodies of law often are considerably different one from the other. Therefore, it makes sense to distinguish them when contextualizing their respective uses within this

   
   

   substitute for thinking and precision,” and that “[f]or legal purposes at least, we might do well to relegate the term sovereignty to the shelf of history as a relic from an earlier era.” Id. at 8, 10.

5. See Ramsey, supra note 9.

6. This sort of hyperbolic phraseology was indeed used by those seeking to discredit the practice. See

   Donald E. Childress III, Note, Using Comparative Constitutional Law to Resolve Domestic Federal Questions, 53 DUKE L.J. 193, 197 (2003).

7. See, e.g., Graham, 130 S. Ct. at 2033; Roper v. Simmons, 543 U.S. 551 (2005); Lawrence v. Texas,

   539 U.S. 558 (2003).

   framework of constitutional law.13 Unfortunately, the U.S. Supreme Court has so far failed to make this distinction. This has provided yet another reason for the critics to attack (in this case, most fairly) the whole interpretative enterprise.

   
   

   The issue of how and when international law should be utilized as persuasive authority within the context of U.S. constitutional reasoning is one of great import and almost equally great complexity. Comparative uses of different bodies of law have grown exponentially over the last twenty years as the world has become more globalized—this trend so far shows no signs of abating. However, the myriad possible combinations within different systems of law have left this enterprise fragmented, disorderly, and without a systemic centricity. Some have suggested that this reflects the reality of the practice and

   that no further intrastate and interstate coordination can be expected.14 Others,

   however, have begun the long and arduous course of giving this comparative enterprise a theoretical and operational contour in the hope of increasing its use and furthering its success.15

   
   

   It is from this latter vantage point that this Article arises. Part I offers a brief bird’s-eye view of the possible array of sources of international law that exist to which the constitutional interpreters can refer. In doing so, this Part points out the various subtleties that exist in international lawmaking and the effect that the various rulemaking processes that exist within this framework have on the reach and applicability of the promulgated rules. Part II addresses the goals of the comparative enterprise so that the use of international law can be better related to the context in which it is being employed. Part III undertakes a brief overview of the U.S. Supreme Court’s recent use of international law as persuasive authority in constitutional interpretation. This Part illustrates the firm factual grounding that critics of the practice are on when they note the apparent lack of methodological consistency that exists in

   
   

8. A pair of previous articles addressed the propriety of distinguishing between international law and foreign domestic law as sources of persuasive authority for U.S. constitutional interpretation and proposed a methodology for conducting this process with respect to foreign domestic law. See Rex D. Glensy, Constitutional Interpretation Through a Global Lens, 75 MO. L. REV. 1171 (2010) [hereinafter Glensy, Constitutional Interpretation]; Rex D. Glensy, Which Countries Count? Lawrence v. Texas and the Selection of Foreign Persuasive Authority, 45 VA. J. INT’L L. 357 (2005) [hereinafter Glensy, Which Countries Count?].

9. See, e.g., Roger Alford, Misusing International Sources to Interpret the Constitution, 98 AM. J. INT’L

   L. 57 (2004); Richard A. Posner, No Thanks, We Already Have Our Own Laws, LEGAL AFF., July–Aug. 2004, at 40. As is customary, the word “state” in the context of international law refers to a nation.

10. See Vicki Jackson, Yes Please, I’d Love to Talk with You, LEGAL AFF., July–Aug. 2004, at 46; Mark

    Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225 (1999).

    the Court’s decisions when it comes to the comparative deployment of international law.

    
    

    Part IV then addresses the concerns of those critics. By drawing on the policy foundations illustrated in Part II and the recent experience of the Court described in Part III, Part IV proposes a structure for the use of international law in this context. This framework...