Harvard Law Review - Introduction: The Debate Over Foreign Law in Roper v. Simmons

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VOL. 119 · November 2005 · NO. 1

INTRODUCTION:
THE DEBATE OVER FOREIGN LAW IN ROPER V. SIMMONS [ Full Text ]

119 Harv. L. Rev. 103 (2005)

Last Term, in Roper v. Simmons, the Supreme Court held that executing an individual for crimes committed while a juvenile was “cruel and unusual punishment[],”confirming its judgment by noting an international consensus against the practice. When the Court in Atkins v. Virginia and Lawrence v. Texas had previously considered foreign and international law, an outpouring of criticism and praise arose from the academy. Similarly, the Roper decision has prompted a national debate over the propriety of citing foreign and international law in domestic constitutional cases; Congress has even entertained resolutions condemning the practice. In the following Comments, Professors Vicki C. Jackson, Jeremy Waldron, and Ernest A. Young take a hard look at the use of foreign and international law in cases like Roper.
In Constitutional Comparisons: Convergence, Resistance, Engagement, Professor Jackson proposes a framework for understanding how courts treat transnational legal norms in interpreting their own constitutions: courts can incorporate them, resist them, or engage with them. Professor Jackson praises engagement, arguing that it has been traditionally embraced in Eighth Amendment jurisprudence and more generally offers “modest benefits” to constitutional interpretation, especially given the inevitability of comparison. She proposes tentative standards of inquiry for the Court in considering foreign or international law and concludes that the Court appropriately considered the international consensus against juvenile execution in its Roper decision..
In Foreign Law and the Modern Ius Gentium, Professor Waldron revives the ancient idea of the law of nations, or ius gentium, to justify turning to foreign law when deciding domestic cases. Tracing the ius gentium’s origins to Rome, Professor Waldron argues that it was not originally confined to what we now call international law, but instead constituted a repository of wisdom for governance in all matters international and domestic. Early jurists relied on the ius gentium much as scientists rely on the experiments of their peers worldwide, and nothing in modern jurisprudence should prevent courts from doing the same today.
In Foreign Law and the Denominator Problem, Professor Young argues that Roper’s use of foreign law is more determinative than most commentators let on. Although domestic courts could use foreign law to determine the consequences of a particular policy or to discern ar-guments as yet unarticulated domestically, Professor Young argues that the Roper Court instead used foreign consensus to expand the “denominator” — the community that defines mainstream opinion — of the Eighth Amendment inquiry into whether a consensus views juvenile execution as cruel and unusual. Comparing this inquiry to assessing community standards under First Amendment obscenity doctrine, he cautions that expanding the denominator by relying on foreign law may have profound and troubling consequences for adjudication.

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