Harvard Law Review - Constitutional Comparisons: Convergence, Resistance, Engagement

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VOL. 119 · November 2005 · NO. 1

CONSTITUTIONAL COMPARISONS:
CONVERGENCE, RESISTANCE, ENGAGEMENT
by Vicki C. Jackson [ Full Text ]

119 Harv. L. Rev. 109 (2005)

References in Roper v. Simmons to foreign and international law — as relevant but nonbinding sources — are in important respects a return to traditional methods of analysis, dating back to the Court’s earliest discussions of the Eighth Amendment. In 1879, the Court rejected a challenge to a sentence of death by shooting in the Utah Territory in part because “[c]orresponding rules [that] prevail in other countries” supported the practice. Thereafter, the Court in many cases likewise considered foreign practice in resolving “cruel and unusual” punishment challenges.
In 1989, Justice Scalia sought to overcome this interpretive tradition, asserting that only U.S. practice should be considered in making threshold determinations of what is “cruel and unusual.” But as prior case law suggests, it is Justice Scalia’s view — that the practices of other countries are irrelevant to understanding “American conceptions of decency” — that is anomalous and properly rejected in Roper.
Outside Eighth Amendment cases, references to foreign and international sources occur episodically in constitutional decisions throughout the Court’s history. Although the Court does not discuss foreign or international law as much as some other national courts, references in Lawrence v. Texas and Grutter v. Bollinger can also be seen as returning to prior practice: for example, between 1949 and 1970, opinions of Supreme Court Justices referred to the Universal Declaration of Human Rights on several occasions.
As suggested above, the Eighth Amendment’s interpretive history supports the majority’s use of foreign and international law in deciding what is “cruel and unusual.” Past practice, however, is only a partial answer to debates over whether transnational law should be considered in resolving questions of U.S. constitutional law, debates linked to a broader set of disagreements about constitutional interpretation. Part I below argues more generally that considering foreign and international law within a framework of learning by engagement — assuming neither convergence nor disagreement — is a legitimate interpretive tool that offers modest benefits (and fewer risks than current debate suggests) to the processes of constitutional adjudication. Part II makes preliminary suggestions for standards of inquiry in using comparative law in constitutional adjudication and raises cautions about the difficulties of developing contextually accurate understandings of foreign law.

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