Globalizing Justice

Critical Perspectives on Transnational Law and the Cross-Border Migration of Legal Norms

Donald W. Jackson, Michael C. Tolley, Mary L. Volcansek, Donald W. Jackson, Michael C. Tolley, Mary L. Volcansek

• Publisher: SUNY Press
• Year: 2010
• ISBN:
  9781438430713
• Topic: Politique et relations internationales
• Subtopic: Mondialisation

Globalization is a far-reaching and multifaceted phenomenon whose effects on law are just beginning to be appreciated fully. Globalizing Justice examines the effects of globalization on law and court systems in the developed and developing worlds. How has the global spread of legal norms changed the relationship between international, supranational, and national courts? How are transnational and international legal norms transmitted and received? The contributors utilize a variety of approaches—historical, comparative, normative, and empirical—to expose the extensive effects of globalization in areas such as human rights, universal criminal jurisdiction, citizenship, and national sovereignty. This volume sheds light on the global spread of information and the cross-border migration of legal ideas across the world to further open up the discussion of globalization in the social sciences. Donald W. Jackson is Herman Brown Professor of Political Science at Texas Christian University and the author of Even the Children of Strangers: Equality under the U.S. Constitution. Michael C. Tolley is Associate Professor of Political Science at Northeastern University and the coauthor (with Christopher J. Bosso and John H. Portz) of American Government: Conflict, Compromise, and Citizenship. Mary L. Volcansek is Professor of Political Science at Texas Christian University and the author of Constitutional Politics in Italy: The Constitutional Court.

PART I

Transnational Influences on the U.S. Supreme Court

CHAPTER ONE

The U.S. Supreme Court's Use of Comparative Law in the Construction of Constitutional Rights

DAVID M. O'BRIEN

In recent years, national high courts' use of comparative judicial opinions and law in the construction of individual rights has commanded greater attention. That is in no small part due to the increasing use of comparative legal analysis in rulings handed down by, for instance, the Supreme Court of Canada;¹ constitutional courts in western, central, and eastern Europe,² along with transnational courts like the ECtHR; as well as the Supreme Court of Israel;³ and the Constitutional Court of the Republic of South Africa (which is required by its constitution to consider comparative and international law),⁴ among other high courts. Court watchers and scholars have argued that a new paradigm for the construction of constitutional rights is emerging, based on and promoting the rise of “world constitutionalism.”⁵ Indeed, in the 1990s and 2000s, the number of citations to foreign legal sources increased in briefs filed and oral arguments before the Supreme Court of the United States.⁶ At the same time, there are those who lament courts' increasing reliance on comparative constitutional law in constructing constitutional rights.⁷

The Supreme Court of the United States has been drawn into, rather than played a leading role in, the debate about the use of comparative law in the construction of constitutional rights. Foreign jurists have criticized the Court for its reluctance to engage in such an analysis.⁸ Members of the Court are sharply divided on the matter, both in their off-the-bench comments and in their opinions. Justices Ruth Bader Ginsburg and Stephen Breyer have been the most outspoken in their embrace of comparative legal analysis when “interpreting constitutions and enforcing human rights.”⁹ By contrast, Justice Antonin Scalia has spoken out against the use of such sources. This is because he is a self-described “originalist”¹⁰ with regard to constitutional interpretation and generally deems foreign materials irrelevant, because in his view such sources may encourage counter-majoritarian judicial decisions.

Members of the Rehnquist Court (1986-2005) have at times rather hotly contested the use of comparative judicial opinions and legal practices. The disagreement is evident in decisions ranging from the Court's role in policing the boundaries of federalism to the constitutionality of the death penalty and Lawrence v. Texas,¹¹ which struck down a state law criminalizing homosexual sodomy. In Printz v. United States,¹² for example, a bare majority invalidated a provision of the Brady Handgun Violence Prevention Act as an infringement on “states' rights,” prompting dissenting Justice Breyer to question the majority's analysis and to highlight competing federal principles in Germany and the European Union. He noted that “their experience may … cast an empirical light on the consequences of different solutions to a common legal problem.”¹³ Yet, in delivering the opinion for the Court in Printz, Justice Scalia responded bluntly: “Comparative analysis is inappropriate to the task of interpreting a constitution.”¹⁴

Justice Scalia's ire intensified in Atkins v. Virginia. There, writing for the Court, Justice John Paul Stevens cited the “world community” in support of what he claimed was an emerging “national consensus” against the execution of murderers who are mentally retarded. He also cited, along with states' execution practices, an amicus brief filed by the European Union. Dissenting Justice Scalia shot back, observing that “the Prize for the Court's Most Feeble Effort to fabricate ‘national consensus’ must go to its appeal … to the views of assorted professional and religious organizations, members of the so-called ‘world community,’ and respondents to opinion polls.”¹⁵

No less opposed to the use of comparative legal materials, Justice Clarence Thomas, in a concurring opinion in the denial of certiorari in another death penalty case, Knight v. Florida,¹⁶ criticized the petitioners for citing foreign sources in support of the claim that twenty years on death row amounts to cruel and unusual punishment under the Eighth Amendment. Likewise, in another concurring opinion on the denial of review, in Foster v. Florida,¹⁷ Justice Thomas challenged Justice Breyer's citation of findings of European and Canadian courts, in a dissenting opinion from the denial of review, as irrelevant “foreign moods, fads, or fashions.”

Still, perhaps, the most widely noted controversy related to the Rehnquist Court's drawing on comparative judicial decisions remains the majority's citing of a decision of the ECtHR in support of overruling a prior decision, Bowers v. Hardwick,¹⁸ and in striking down Texas' law penalizing homosexual sodomy in Lawrence v. Texas. Writing for the Court, Justice Anthony Kennedy observed:

Almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case … [and] held that the laws proscribing the conduct were invalid under the European Convention on Human Rights, Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981) P52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.¹⁹

Justice Kennedy proceeded to emphasize that “other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct.”²⁰ Ironically, dissenting in Lawrence v. Texas, Justice Scalia cited a Canadian court decision²¹ barring discrimination against homosexuals and warned of the judicial imposition of homosexual marriage.

Not surprisingly, Court watchers are no less divided about the incorporation of comparative legal analysis into the U.S. Supreme Court's opinions and constitutional law. Some supporters embrace the use of such foreign sources of law as pragmatic and functional in promoting the expansion of individual rights.²² By contrast, others contend that comparative legal analysis has no place in constitutional interpretation.²³ They also argue that foreign law leads to antidemocratic and counter-majoritarian results.

Rather than engage in the normative debate about the propriety of the Court's reliance on comparative constitutionalism, the aim here is simply to examine and assess the Rehnquist Court's use of comparative law in the construction of individual rights, and specifically its reliance on foreign judicial opinions. Section One discusses briefly the Court's uses of comparative law. Section Two turns to an examination of competing uses of foreign judicial opinions. Section Three provides some concluding observations, but the basic conclusion may be stated at the outset. In spite of the controversy about the Court's reliance on foreign legal materials, the justices' uses of those materials remain very limited, certainly in comparison to other national high courts.

SOURCES AND USES OF COMPARATIVE AND INTERNATIONAL LAW

The Court has long drawn on sources of comparative law, ranging from observations on comparative legal practices, to works by foreign commentators,²⁴ to constitutional and statutory provisions, to international treaties and declarations,²⁵ to other high courts' judicial decisions. Chief Justice John Marshall, for example, writing in an admiralty case, Thirty Hogsheads of Sugar v. Boyle,²⁶ observed: “The decisions or the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect.”²⁷ Although he did not regard them as authority, Chief Justice Marshall nonetheless emphasized that “the rules established in British courts, and those established in the courts of other nations” constitute sources for judicial decision making and for developing workable rules of law. In addition, the supremacy clause in Article VI of the Constitution requires the courts to consider international treaties to which the United States is a party as binding and authoritative; however, that is a very different matter from citing foreign judicial decisions in the construction of constitutional rights, as in Lawrence v. Texas.

Admittedly, the Court's use of comparative law sources may prove misguided and in other ways problematic, but the same is true with regard to its reliance on history or social science data. As a result, scholars have analyzed the uses of comparative law sources and argued for the need for a more general theory of the use of comparative legal sources.²⁸

The Court historically has employed comparative materials in four basic ways. First, the Court has referenced comparative legal materials in dicta, presenting a comparative context and legal contrasts that nevertheless appear not essential to resolving the issue presented. Second, the Court has taken “judicial notice” of the fact of differing foreign laws, legal systems, and decisions in its construction of constitutional rights. Third, the Court has cited foreign judicial decisions as precedents in its construction of individual rights and, alternatively, rejected or adopted them. Finally, on rare occasions, the Court has undertaken comparative constitutional analysis in order to provide a more persuasive rationale for its ruling.

Admittedly, these categories are not hard and fast. They are often matters of degree rather than differences in kind. Justice Harry A. Blackmun's citations to and discussion of Persian, Greek, Roman, and English laws in Roe v. Wade²⁹ in support of the proposition that abortion prior to quickening was not an indictable offense, for instance, might be considered taking “judicial notice” of comparative legal practices or dismissed as dicta. In any event, some examples of these different uses of foreign sources may prove useful in clarifying each category.

The Court has long included as dicta comparative references to the legal practices of the “English-speaking people.”³⁰ It has done so often in order to highlight differences between the common law system versus the Continental inquisitorial system³¹ or to emphasize democratic constitutional values in contrast with those of totalitarian regimes.³² Besides drawing comparisons to emphasize the constitutional value and scope of individual rights, the Court has employed such materials in dicta when determining the constitutional boundaries of the national government's power and the scope of permissible governmental regulations.³³

The citation in dicta or taking judicial notice of foreign legal sources and practices has, arguably, been invited by some of the Court's own standards for determining the scope of constitutional rights and powers. Foreign legal sources have been cited when applying, for example, the standard of “reasonableness”³⁴ and Justice Benjamin Cardozo's standard for selectively incorporating into the Fourteenth Amendment due process clause only those guarantees of the Bill of Rights “implicit in the concept of ordered liberty.”³⁵

Another source of continuing controversy is the “evolving standards of decency that mark the progress of [our] maturing society”³⁶ when determining the application of the Eighth Amendment's ban on “cruel and unusual punishment” to the imposition of capital punishment. Notably, Justice Arthur J. Goldberg, dissenting from the denial of certiorari in Rudolph v. Alabama,³⁷ invoked that standard and “standards of decency more or less universally accepted,”³⁸ citing United Nations (UN) surveys, reports, and foreign laws in support “of the trend … throughout this world” against the imposition of the death penalty. On that basis, he specifically invited attorneys to challenge the constitutionality of imposing capital punishment for the crime of rape. It also seems fair to state that his opinion in Rudolph v. Alabama sparked a national debate about the death penalty, leading to a ten-year moratorium as well as encouraging comparative analysis in the Court's opinions on capital punishment.

Hence, writing for a plur...

Table of contents

• Series Page
• PART I Transnational Influences on the U.S. Supreme Court
• PART II The Rise of Transnational Criminal Jurisdiction
• PART III Transnational Influences on Rights, Citizenship, and Democratization
• PART IV Transnational Law and the Boundaries of Sovereignty
• Conclusion
• List of Contributors