Tribe on the Use of Foreign Law

In an earlier post, I outlined the basic themes of Laurence Tribe’s The Invisible Constitution.  One specific section that was of particular interest to me was Tribe’s defense of the use of foreign law in constitutional interpretation.  I run into this controversial practice every spring when I teach Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 51 (2005).  Interpreting the Cruel and Unusual Punishment Clause of the Eighth Amendment, Atkins banned execution of the mentally retarded, while Roper outlawed the death penalty for juvenile defendants.  In both cases, the majority drew intense criticism for citing foreign law in support of its holding.

Based on Atkins and Roper anyway — I am admittedly not as familiar with some of the Court’s other uses of foreign law — I think that Tribe is right about at least two things.

First, much of the criticism of the Court’s use of foreign law is overblown.  Despite suggestions that American sovereignty itself may be threatened by citations to foreign law, I think it is hard to read such citations as anything more than an afterthought in either Atkins or Roper.  Indeed, in Atkins, the reference to foreign law is made only in passing in the middle of a long footnote.  In Roper, foreign law does get more textual play, but only after the Court has already completed its standard two-step Eighth Amendment analysis.  (“Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”)  I like Tribe’s phrase for this (perhaps borrowed from Mark Tushnet): the justices are “using foreign sources to put icing on cakes that they insist have already been baked” (187).

Second, I think Tribe is also right to suspect there are connections between jurisprudential “antiglobalism” and “the evidently rising national anxiety about immigration, the outsourcing of important economic activities to businesses and employees overseas, and the decline of American prestige abroad in the wake of the Iraq war” (186).  Without some connection to deeper national preoccupations, it is hard to see why a few passsing references to foreign law have produced such an outpouring of outrage.

To be sure, there is something rather awkward in the foreign-law references in Atkins and Roper, particularly when the opinions are set against the backdrop of the Court’s earlier Eighth Amendment cases.  As it has attempted to regulate the politically popular death penalty through Eighth Amendment interpretation, the Court has obviously been quite sensitive to charges that it is merely enacting its own policy preferences.  For that reason, in its modern Eighth Amendment cases, the Court has repeatedly emphasized the use of “objective” indicia of national consensus.  Usually, this means little more than simply counting the number of states that prohibit the challenged practice.  This has always struck me as an odd way to decide the scope of an individual constitutional right; I would have thought such rights should function as constraints on majority will, not codifiers of majority will.  In any event, the point is this: when the touchstone of Eighth Amendment analysis is counting states to decide “national consensus,” there is indeed something a bit jarring about following the state-counting with nation-counting — this seeems implicitly to suggest that foreign nations “count” as much as domestic states and that foreign preferences are part of the “consensus” that the Eighth Amendment doctrine purports to codify.  Framed this way, one can see some sort of basis — still much overblown, I think — for the sovereignty concerns.

A more coherent approach to the Eighth Amendment — one, that is, that does not purport to make individual rights a popularity contest — would result in less dissonance when foreign law is consulted.  The sort of reasoning suggested by Tribe might then have greater appeal in the Eighth Amendment context:

[T]here is much to be said for learning from other nations and from the world community as we seek to flesh out the skeleton of basic human rights that has always undergirded our own Constitution’s protections for life and liberty, particularly given the strong evidence that the framers of the 1787 Constitution read widely and borrowed freely from the ideas of international law treatise-writers, and that they thought of themselves, as did those who drafted the Fourteenth Amendment nearly a century later, as protecting basic rights common to all humankind and not some peculiarly American set of rights and privileges. (183-84) 

This Post Has 4 Comments

  1. Sean Samis

    Advocates of a parochial, restrained judiciary have not yet effectively responded to the problem that, if Originalism means anything, it means looking at jurisprudence as the Framers did. The Framers’ jurisprudence was often internationalist in outlook and activist in behavior.

  2. Ed Fallone

    I think that Justice Kennedy’s reference to the evolving European attitude towards homosexual conduct in Lawrence v. Texas, and its use to justify overruling the precedent of Bowers v. Hardwick, is what put the issue of foreign law on the conservative radar screen. While I find the use of foreign law as an aid to constitutional interpretation to be unexceptional in most situations, there does seem to be something different about its use to overrule precedent (especially precedent of recent vintage like Bowers was). One could argue that the cake was already baked in Bowers, and that the Lawrence opinion improperly cooked a new cake from scratch.

  3. Jessica E. Slavin

    I guess that what I’m about to say takes the discussion a little far afield from the application of foreign law in constitutional interpretation. But I thought I’d chime in with my perspective (as a refugee law specialist) that as the rest of the world seems to be moving toward greater consideration of foreign law in domestic decisions, the U.S. courts’ apparent reluctance to give foreign law much weight seems increasingly shortsighted and contrary to our own very selfish interests.

    In my field, refugee law (which, obviously, is less truly “domestic” than for instance constitutional interpretation), decisions from U.S. courts seem to me to be slowly losing their persuasive force and influence in the development of foreign and international refugee law. This is in part because of various ways in which the U.S. decisions have ignored or stepped away from decisions about which there is international consensus. But I think it is also because of the fact that, even when they reach decisions that are consistent with international or foreign decisions on similar subjects, U.S. courts, (unlike Canadian, Australian, or British courts) usually exhibit complete disregard of the growing body of international law on the same subject. To my mind, regardless of whether such disregard is legally correct or, at least, permissible, it is unwise. We would do better to take the opportunity to participate in (and thus help to shape, and be shaped by) the growing body of international law. This is especially true in refugee law, for very practical reasons–that system would be more just and functional if the legal and procedural standards were consistent worldwide. But there’s a bit of truth in it for all aspects of U.S. law, I think. We no longer live in a world in which legal isolationism can protect us from outside forces (if we ever did). Instead, that approach increasingly leaves us isolated and reduces our influence.

  4. Matthew Fernholz

    I agree that the issue of citing to foreign law is overblown. The majorities in Atkins, Roper, and Lawrence would have reached their conclusions regardless of any supportive international case law. However, it is still useful to engage in the debate over citing to international law.

    The primary problem with the citation of foreign law is selectivity. Foreign law is cited as “helpful” on the death penalty and gay rights, but not access to abortions or the exclusionary rule. Furthermore, how do we know which countries can help us to interpret the U.S. Constitution and which cannot? If the true intent of citing to foreign law is to divine the arc of history, perhaps our Supreme Court would be better served by citing to Asian courts. After all, China and India will be vastly more important to the development of the twenty-first century than Sweden or Luxembourg.

    We should also remember that other countries — even Western democracies — have vastly different political frameworks than the United States. The notion of separation of powers is foreign to European parliamentary countries. Even the concept of judicial review did not begin to emerge outside the United States until after World War II. Additionally, much of Europe has ceded away some measure of sovereignty through the European Union and the European Court of Justice. The American political system still remains unique.

    The goal of federal courts is to interpret our laws and our Constitution. The Supreme Court is not charged with making foreign policy. If one truly believes in the concept of international law, let the political branches sell it to the American people through U.N. agreements and treaties. But given the troubles the international community has had in collaboratively resolving issues such as the genocide in Darfur, North Korean and Iranian nuclear proliferation, and the Iraq War, I remain skeptical that a true international consensus on anything will emerge ever.

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