The law of the lands
Why US courts look overseas
Earlier this year, the US Supreme Court found Missouri's planned execution of Christopher Simmons unconstitutional because he was 17 years old when he broke into a woman's home, tied her up, dragged her to a bridge, and threw her to her death in the waters below. Writing for the court, Justice Anthony Kennedy pointed out that the laws of no other countries permitted the execution of juveniles. Consequently, he observed that ''the express affirmation of certain fundamental rights by other nations and peoples . . . underscores the centrality of those same rights within our own heritage of freedom."
The Supreme Court's willingness to look to foreign and international law when interpreting the US Constitution is not unusual. In recent cases on the death penalty, affirmative action, privacy, and due process, the court has reviewed statutes and case law in other countries, as well as treaties and the decisions of international tribunals.
Yet not everyone is happy about using foreign and international law to interpret a Constitution drafted by and for Americans. Supreme Court Justices Antonin Scalia dissented in the Simmons case, saying: ''Acknowledgment of foreign approval has no place in the legal opinion of this court . . . " Indeed, a bill has been introduced in Congress that would forbid US federal courts from using foreign and international law in their opinions, except for English law and other sources relied upon by the framers of our Constitution.
There can be little doubt that terrific sound bites can be generated by denouncing ''unelected judges" for letting foreigners ''tell Americans what our Constitution means." What could be more unpatriotic? The problem is that the use by US courts of international law is not the Draconian usurpation of US sovereignty envisaged by the critics.
For example, in the Simmons case, the court fully accepted that the Constitution's prohibition on ''cruel and unusual punishments" should be interpreted according to the text of the Constitution, in conjunction with its American history, tradition, and precedent. To that end -- well before any discussion of foreign or international law -- the court engaged in an extensive analysis of the rejection of the juvenile death penalty in the majority (30) of US states, the infrequency of its use even in states where it was available, and the consistency in a trend toward abolition of such punishment. For the court, all this evidence demonstrated that contemporary American society views juveniles as categorically less culpable than the average criminal.
Further, the court considered the meaning of its prior jurisprudence, which had found that the death penalty is reserved for serious offenders who are ''the most deserving of execution." Yet because juveniles are immature, their behavior -- even when heinous -- cannot be deserving of execution.
Only after this analysis of US conceptions of ''cruel and unusual punishment" did the court turn to laws overseas. In doing so, the court stated that the ''opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our conclusion."
In short, the court's use of foreign and international law to date has been fairly conservative in scope, sometimes appearing as simply a footnote to a much more lengthy argument focused on US law. Why then the fuss?
The critics note that if the purpose in using such law is solely to confirm a legal analysis already reached based on US law, then using foreign or international law is wholly unnecessary. The only reason to use such law, therefore, must be to reach an outcome not supported solely within US law. Thus, if a judge thinks that X should be the outcome in a case, but cannot find sufficient support for X solely in US law, then she will go looking for a foreign or international precedent in support of X, and then use that precedent to reach the outcome desired. Yet such an approach is undemocratic; judges are supposed to apply the laws adopted by the American people, not make up new laws on their own.
Further, the critics point to methodological problems in assessing foreign and international law. There are some 190 other countries in the world; how are US judges supposed to survey the laws of each? What if there is a split among those laws? What if those laws reveal a widespread practice that detracts from American liberties? While today the use of foreign and international law in constitutional interpretation may seem sparse, the critics believe it might well increase in the future, given that everything else these days seems to be globalizing.
There are merits to these concerns and US judges would do well to heed them. Nevertheless, one flaw with these objections is the failure to confront exactly how it is that US courts are using foreign and international law.
For instance, Chief Justice Warren Burger upheld Georgia's antisodomy statute in 1986 by claiming that sodomy was contrary to the history of Western civilization and to Judeo-Christian moral and ethical standards. Similarly, in Lawrence v. Texas, the Texas Court of Appeals in 2001 upheld Texas's antisodomy statute in part by stating that ''Western civilization has a long history of repressing homosexual behavior by state action." When Lawrence was appealed in 2003, the Supreme Court cited foreign and international laws protecting the right of homosexual adults to engage in intimate, consensual conduct -- largely as a means of refuting the idea that antisodomy laws are accepted worldwide.
In other words, the foreign and international law in Lawrence was being used by the Supreme Court not as controlling authority, but to demonstrate that an opposing argument about Western civilized norms of behavior was unsustainable. Used in this manner, it is not necessary to prove that all 190 other countries permit sodomy; it is enough to show that Western states, now operating within a highly advanced system of human rights, allow such conduct.
Another flaw in the critics' argument is the conception that US law has no inherent relationship to foreign or international law. From the earliest days of our republic, our courts have relied upon foreign and international law for construing US law. Doing so was seen as important for maintaining continuity with legal rules and principles inherited from Europe, for avoiding conflicts with other nations, and for securing the place of the United States in the world community.
Many provisions of the Constitution directly invite reference to foreign and international law (such as the power of Congress to ''define offenses against the law of nations") while others are so open-textured (''cruel and unusual," ''due process of law," or ''equal protection") that they invite an inquiry into fundamental conceptions of humanity and human rights, conceptions with which all countries must grapple.
Today, the continued development of US constitutional law can benefit from the experiences of other countries. Without abdicating sovereignty, we can learn from other countries' successes and failures. No less a conservative judge that Chief Justice William Rehnquist has written: ''Now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process."
Sean D. Murphy is a professor of law at George Washington University. 