The Relevancy of Foreign Law as Persuasive Authority and Congress's Response to Its Use: a Preemptive Attack on the Constitution Restoration Act
| Publication year | 2010 |
Georgia State University Law Review
Article 3
12-1-2006
The Relevancy of Foreign Law as Persuasive Authority and Congress's Response to its Use: A Preemptive Attack on the Constitution Restoration
Act
Elizabeth Bulat Turner
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Recommended Citation
Turner, Elizabeth Bulat (2006) "The Relevancy of Foreign Law as Persuasive Authority and Congress's Response to its Use: A Preemptive Attack on the Constitution Restoration Act," Georgia State University Law Review: Vol. 23: Iss. 2, Article 3. Available at: http://digitalarchive.gsu.edu/gsulr/vol23/iss2/3
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THE RELEVANCY OF FOREIGN LAW AS PERSUASIVE AUTHORITY AND CONGRESS'S RESPONSE TO ITS USE: A PREEMPTIVE ATTACK ON THE CONSTITUTION RESTORATION ACT
Introduction
Justice Antonin Scalia, notorious for his scathing dissents, did not disappoint with his analysis of the majority's use of foreign law to support the consensus against executing the mentally retarded in Atkins v. Virginia.1 He wrote the following: "But the Prize for the Court's Most Feeble Effort to fabricate 'national consensus' must go to its appeal... to the views of. . . the so-called 'world community' . . . whose notions of justice are (thankfully) not always those of our people." Though one of the most outspoken and high-profile opponents of the use of foreign law in judicial decisions, Justice Scalia is certainly not alone.3
Congress and sectors of the public have joined Justice Scalia and similarly minded Justices in condemning the use of foreign law as judicial authority.4 In fact, there is a movement to prohibit using foreign law as persuasive authority or for any other purpose.5 Many even see the 2005 decision in Roper v. Simmons as sparking a renewed interest in the movement against using foreign law, as well as contributing to it by "rekindling] a fledgling effort... in favor of an intellectual protectionism which would ban all 'foreign opinions' from American judicial decision-making."6
1. Atkins v. Virginia, 536 U.S. 304, 337 (2002) (Scalia, J., dissenting).
2. Mat 347.
3. See e.g., Hadar Harris, "We Are the World"—Or Are We? The United States' Conflicting Views on the Use of International Law and Foreign Legal Decisions, 12 HUM. rts. brief 5, 7 (2005).
4. Id. at 6-7.
5. Id. at 7-8; see also Constitution Restoration Act of 2005, H.R. 1070, 109th Cong. § 201 (2005) [hereinafter CRA] (prohibiting a federal court from using foreign law, other than English common law, in interpreting and applying the United States Constitution); The Feeney Resolution or Reaffirmation of American Independence Resolution, H. R. Res. 97, 109th Cong. (2005) (seeking to reaffirm the sense that judicial decisions based on Constitutional interpretation should not be based upon foreign law, unless such law informs an understanding of the Constitution's original meaning).
6. Harris, supra note 3, at 7.
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The Constitution Restoration Act of 2005 (CRA), legislation which would bind all federal courts if signed into law, is an integral part of
• • • » » "7
the movement against the use of foreign law in judicial decisions. In addition to stripping federal courts of jurisdiction in certain cases,8 the CRA seeks to declare any act by a judge that "exceeds . . . jurisdiction[al]" limitations (including citing to any kind of foreign authority) an impeachable offense, and to prohibit a federal court's use of foreign law injudicial decisions.9
Despite objections to using foreign law as persuasive authority, real considerations weigh in favor of its continued use in judicial decisions.10 This Note will argue that international and comparative law has a relevant place in the judiciary's interpretation of domestic law, and that Congress's politically motivated response to its use in the CRA is likely unconstitutional and certainly imprudent.11
Part I of this Note will trace the history of the Supreme Court's use of international and comparative law as persuasive authority, including a more detailed look at recent cases that are the center of the current controversy. Part II of the Note will articulate the relevance and benefits of using international and comparative law as persuasive authority. Part III will convey the arguments against using foreign law as persuasive authority.14 Part IV of the Note will discuss Congress's response to using international law as persuasive authority by looking at the CRA, will argue that the response is likely unconstitutional, and will argue that policy considerations weigh against its adoption.15 The Note will conclude that including comparative references in judicial decisions is helpful and
7. SeeH.R. 1070, §201.
8. Jurisdiction-stripping provisions in the CRA are beyond the scope of this Note.
9. H.R. 1070, §201.
10. See infra Parts II, III.
11. See infra Part IV.
12. See infra Part I.
13. See infra Part II.
14. See infra Part HI.
15. See infra Part IV.
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appropriate in our increasingly interconnected world, and that Congress's response to its use is reactionary and unwise.16
I. Tracing the Use of International Law Through Supreme
Court Decisions
A. Historical Use of International Law
Though some would have the public believe that using international law as persuasive authority is a novel idea to subvert the United States Constitution,17 the Supreme Court has, in fact, long used foreign law to analyze and compare the way constitutional
l o
standards are applied by the Court in the United States. For example, Chief Justice John Marshall, in the case commonly known as The Charming Betsy, held that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains."19 Again in McCulloch v. Maryland, Chief Justice Marshall implied that "the universal assent of mankind," the same appealed to in the first paragraph of the Declaration of Independence, can be relevant to judicial considerations. Moreover, Justice Stephen Breyer stated the following: "Willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a 'decent respect to the opinions of mankind.'"21
16. See infra conclusion.
17. See Constitution Restoration Act of2004: Hearing Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H Comm. on the Judiciary, 108th Cong. 88, 92 (2004) [hereinafter Hearing] (written statement of the Honorable Roy S. Moore, former Chief Justice of the Supreme Court of Alabama).
18. David S. Law, Generic Constitutional Law, 89 minn. L. REV. 652, 657 (2005).
19. Murray v. Schooner Charming Betsy (The Charming Betsy), 6 U.S. (2 Cranch) 64, 118 (1804).
20. The Declaration of Independence para. 1 (U.S. 1776); McCullouch v. Maryland, 17 U.S. 316,405(1819).
21. Knight v. Florida, 528 U.S. 990, 997 (1999) (quoting the declaration of independence para. 1 (U.S. 1776)).
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Despite the Supreme Court's continued use of foreign law, its use is manifestly rare and is marked by de minimis importance.22 Its use in this country attracts attention "precisely because it is so rare."23 For instance, between 1990 and 2003, the United States Supreme Court cited British or Canadian decisions only 21 times.24 "By . . . comparison, the Canadian Supreme Court cited American decisions 230 times in the year 1990 alone,"25
Though the use of foreign law as persuasive authority remains rare, recent controversial cases bring its use to the attention of lawmakers and the public. The following section explores recent controversial decisions that have contributed to the increased attention paid to federal courts' citing international law as persuasive authority.
B. Recent Supreme Court Cases Relevant to the Foreign Law Polemic
1. Atkins v. Virginia
In Atkins v. Virginia, a mentally retarded man (IQ of 59) was sentenced to death after being convicted of abduction, armed robbery, and capital murder. He appealed his case to the Supreme Court, arguing that executing a mentally retarded person constitutes "cruel and unusual punishment" under the Eighth Amendment, and the Supreme Court reversed his sentence.
22. Hearing, supra note 17, at 11-12 (statement of Michael J. Gerhardt, while serving as Hanson Professor of Law at William and Mary Marshall—Wythe School of Law); Law, supra note 18, at 699.
23. Law, supra note 18, at 699.
24. See Diarmuid F. O'Scannlain, Circuit Judge, United States Court of Appeals for the Ninth Circuit, What Role Should Foreign Practice and Precedent Play in the Interpretation of Domestic Law?, Address Before the Institute of Advanced Legal Studies of the University of London (October 11,2004), in 80 Notre Dame L. Rev. 1893,1895 (2005).
25. Id.
26. See John K. Setear, A Forest with No Trees: The Supreme Court and International Law in the 2003 Term, 91 Va. L. rev. 579, 664-65 (2005).
27. See infra ?sai IB.
28. See Atkins v. Virginia, 536 U.S. 304, 307-09, 321 (2002).
29. See U.S. const, amend. VIII; Atkins, 536 U.S. at 310-11.
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In holding that executing mentally retarded criminals constitutes "cruel and unusual punishment' and is unconstitutional as a violation of the Eighth Amendment,30 the Court stated that "within the world community, the imposition of the death penalty for crimes committed
31
by mentally retarded offenders is overwhelmingly disapproved." With this analysis, the Court implied that international norms can be relevant to the evolving standard of decency. Though...
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