The Supreme Court and foreign sources of law: two hundred years of practice and the juvenile death penalty decision.

• Author: Calabresi, Steven G.

"The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

--Justice Kennedy, writing for the majority in Roper v. Simmons (1)

"[T]his Nation's evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement--expressed in international law or in the domestic laws of individual countries--that a particular form of punishment is inconsistent with fundamental human rights. At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus."

--Justice O'Connor, discussing the relevance of foreign sources of law in her dissenting opinion in Roper v. Simmons (2)

"[T]he basic premise of the Court's argument--that American law should conform to the laws of the rest of the world--ought to be rejected out of hand.... I do not believe that approval by 'other nations and peoples' should buttress our commitment to American principles any more than (what should logically follow) disapproval by "other nations and peoples" should weaken that commitment."

--Justice Scalia, dissenting in Roper v. Simmons (3)

 TABLE OF CONTENTS INTRODUCTION I. THE EARLY COURT A. The Law of Nations

2. Civil and Roman Law and the Early Supreme Court . C. Opinions of Chief Justice Marshall 1. Murray v. Schooner Charming Betsy/

   Talbot v. Seeman 2. Rose v. Himely 3. Brown v. United States 4. The Antelope D. Opinions of Justice Story

   1. United States v. Smith 2. Columbian Insurance Co. of Alexandria v. Ashby E. Opinion of Justice Johnson 1. The Rapid II. CASES INCLUDING FOREIGN LEGAL REFERENCES IN THE YEARS 1840 TO 1890 A. Social Issue Cases 1. Dred Scott v. Sandford 2. Reynolds v. United States B. Civil and Roman Law and the Supreme Court in the Mid-1800s . C. Other Cases from the Second Half Century of Our Constitutional History 1. New York Life Insurance Co. v. Hendren 2. Hurtado v. California 3. The Legal Tender Cases: Knox v. Lee and Juilliard v. Greenman

   4. Ker v. Illinois III. CASES INCLUDING FOREIGN LEGAL REFERENCES

   IN THE YEARS 1890 TO 1940 A. The Paquete Habana B. Reasonableness Cases 1. Lochner v. New York (Harlan Dissent) 2. Muller v. Oregon C. Roman Law During the Late Nineteenth and Early Twentieth Centuries D. Other Cases from This Era 1. Palko v. Connecticut 2. United States v. Perkins 3. O'Malley v. Woodrough 4. Selective Draft Law Cases 5. Block v. Hirsh IV. CASES INCLUDING FOREIGN SOURCES OF LAW FROM 1940 TO THE PRESENT

1. Opinions of Justice Frankfurter . 1. Adamson v. California

   2. Wolf v. Colorado B. Criminal Cases 1. Trop v. Dulles

   2. Miranda v. Arizona 3. Coker v. Georgia 4. Enmund v. Florida 5. Thompson v. Oklahoma 6. Atkins v. Virginia

   7. Roper v. Simmons C. Social Issue Cases 1. Roe v. Wade 2. Washington v. Glucksberg 3. Lawrence v. Texas

4. Opinions of Justice Breyer 1. Printz v. United States

   2. Knight v. Florida V. THEMES IN THE SUPREME COURT'S USE OF FOREIGN SOURCES OF LAW THROUGHOUT HISTORY A. Cases Requiring a Determination of Reasonableness 1. Substantive Due Process Cases

   2. Criminal Law Cases Involving a Reasonableness Requirement

   3. Assessments of Reasonableness in Eighth Amendment Cases B. Cases Requiring the Interpretation of Ambiguous Phrases or Where the Law on the Issue at Hand Is Ambiguous or Contradictory

3. Criminal Law Cases D. Logical Reinforcement Cases E. Use of Foreign Sources of Law To Provide Empirical Support for the Court's Factual Assertions F. Areas Where Reference to Foreign Sources of Law Typically Does Not Occur CONCLUSION: WHAT DO TWO CENTURIES OF PRACTICE TELL US THAT IS RELEVANT TO THE CURRENT DEBATE OVER RELIANCE ON FOREIGN SOURCES OF LAW?

   INTRODUCTION

   Should courts cite foreign law in U.S. constitutional cases? The Supreme Court said "yes" last term in Roper v. Simmons, (4) the landmark case that recently struck down the juvenile death penalty. Justice Kennedy's majority opinion and Justice O'Connor's dissent both cited foreign law, (5) even though they disagreed as to the constitutionality of the juvenile death penalty. (6) Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, forcefully dissented, saying that foreign law is not relevant to the Court's constitutional decision making. (7)

   This issue first drew public notice two years ago in Lawrence v. Texas. (8) That case struck down state laws against sodomy, in part, by relying on decisions of the European Court of Human Rights. (9) In the wake of Lawrence and Roper, the disagreement on the Court is no longer about whether to cite foreign sources of law but about when and how to cite them. (10)

   The Justices have taken the debate beyond their chambers. In January of 2005, Justices Scalia and Breyer debated this issue publicly at American University, (11) with Justice Breyer expressing support for citing foreign law and Justice Scalia disagreeing. (12) Other Justices have also made public statements about this issue. In a 2004 speech at Georgetown Law School, Justice O'Connor approved of the citing of foreign law in U.S. courts, (13) a view that she has also expressed elsewhere. (14) And, at a recent national convention of the American Constitution Society, Justice Ginsburg took the same position. (15)

   The use of foreign law is often thought to be an issue that divides conservative and liberal Justices. (16) But, Chief Justice Rehnquist once endorsed the use of foreign law in constitutional cases even though he joined Justice Scalia's dissents in Lawrence and Roper. (17) Moreover, Chief Justice Rehnquist was also the author of a major opinion in the assisted-suicide case, Washington v. Glucksburg, which cited and discussed how the practice of assisted suicide has led to abuses in the Netherlands. (18) Justices Scalia and Thomas joined Glucksberg without commenting on its citation of foreign legal practices on assisted suicide. (19)

   In addition, although the Court has cited foreign law in support of liberal results banning the execution of juveniles and promoting gay rights, citation of foreign law in other areas could lead to results conservatives favor. Foreign law is more conservative than U.S. constitutional law with respect to separation of church and state, admission of illegally obtained evidence, and allowance of governmental restrictions on speech. And, on the political hot-button issue of abortion, many foreign nations have policies that are much more restrictive overall of abortion rights than those in the United States. Although most European nations do have legalized abortion, most restrict its availability to approximately the first twelve weeks of gestation, rather than allowing elective abortion into the second and even third trimesters, as is the practice in the United States. (20) In fact, the United States is one of only six countries worldwide that allows "abortion on demand until the point of viability." (21)

   Legal scholars have played a big role in the debate so far over whether to cite foreign law in constitutional cases. (22) Yale Law Dean Harold Koh has been at the "vanguard of the movement to encourage U.S. courts to pay more attention to international trends." (23) Others have argued strongly against the practice, including Roger P. Alford and Joan Larsen. (24) The debate has not been left solely to the Justices and to legal academics but has led to much public discussion and has even led to the creation of interactive websites. (25) One of us, Professor Calabresi, has written an article that calls on Congress to reinstitute circuit riding in July when the Justices currently go to Europe to soak up foreign constitutional law. (26) And, two Congressmen recently introduced a bill on the subject in the House of Representatives entitled the "Reaffirmation of American Independence Resolution." (27) This bill would specifically provide that "judicial determinations regarding the meaning of the laws of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the laws of the United States." (28)

   Advocates and opponents of reliance on foreign law disagree on the question of whether the current Court's practice of citing such law is unprecedented. (29) Strikingly, however, the participants in this debate have not yet stopped to examine closely just what exactly the actual practice of the Supreme Court has been over the past two hundred years of its history in citing foreign law. This Article fills that gap by describing what the Supreme Court's practice has actually been from 1789 to 2005 with respect to citing foreign law. We will show that the Court's citation of foreign law in recent years is not "unprecedented" as some critics have claimed, (30) although citation to such sources is increasing. We also show that there have been some dramatic instances of the Court citing foreign law historically. For example, foreign law is cited in concurring and dissenting opinions joined by six of the nine Justices in Dred Scott v. Sandford (31) and in the Court's opinion in the anti-polygamy case, Reynolds v. United States. (32) Foreign law is also cited in the Legal Tender Cases (33) and the Selective Draft Law Cases, (34) both of which had big federalism implications. Moreover, we will show that the debate over whether to cite foreign law in American court opinions is not at all new. Indeed, the Justices debated the practice as early as 1820 when Justice Livingston responded to Justice Story's use of foreign law to provide a definition for the crime of piracy by stating that "it is not perceived why a reference to the...