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and the^ proper^ role^ of^ courts^ in^ a^ constitutional^ system.^ He^ also^ perceives^ a^ significant^ risk that an internationalist approach to constitutional adjudication could result in undermining rather than enhancing the American approach to^ constitutional^ rights.^ MichaelD.^ Ramsey^ con- tinues the critique by calling for those who would apply international sources to accept rigor- ous discipline in their use, involving (1) articulation of^ the theory^ of^ relevance^ of^ such^ mate- rials; (2) acceptance of outcomes that might not necessarily support the rights-enhancing preferences of most internationalists; (3) attention to the full factual picture of international practice; and (4) avoidance of the uncritical assumption that the views of selected human rights tribunals and UN agencies represent a global consensus. Gerald L. Neuman offers both ajustification for turning to international law and practice as one available resource for constitutional interpretation, and a method^ for^ how^ to^ do^ so. He analyzes the relationship between international human fights law and constitutional inter- pretation in terms of their consensual, suprapositive, and^ institutional^ characteristics,^ so^ that a serious inquiry into international sources can inform a domestic court as it strives for the most complete understanding of complex problems that recur in democratic societies around the world. Finally, T. Alexander Aleinikoff seeks to move beyond the existing debates^ on the place of international law^ in^ theU.S.^ legal^ system,^ by^ advocating^ congressional^ enactment^ of a new "Incompatibility Statute" modeled on the British Human Rights Act, which would allow forjudicial determinations of inconsistencies between U.S. federal law and international law and facilitate efforts to ensure compliance with the international obligations^ of^ the United States. Our hope is that the viewpoints expressed in this forum not only will contribute to the ongo- ing dialogue in this country about the relevance of international^ sources^ to^ domestic^ legal questions, but also will help our foreign readership reach a fuller understanding of the com- plex interactions of^ international^ law^ and^ constitutional^ law^ in^ the^ United^ States.
INTERNATIONAL LAW AS PART OF OUR LAW
By Harold Hongu Koh*
What did the United States Supreme Court mean when it famously said, "International law is part of our law, and must be ascertained and administered by the courts ofjustice of appropriatejurisdiction, as often as questions of right depending upon it are duly presented for their determination"?' Perhaps the Courtwas suggesting that, in an interdependent world,
***** Of the Board of Editors. The author served as Counsel of Record for Mary Robinson, et al., Amici Curiae, in Lawrence v. Texas (arguing that statutes criminalizing same-sex sodomy violate the concept of"ordered liberty" in Due Process^ and^ Equal^ Protection^ clauses),^ and^ for^ U.S.^ Diplomats^ Morton^ Abramowitz,^ et^ al.,^ Amici^ Curiae,^ in McCarverv.North Carolina, No. 00-8727 (U.S. cert. dismissed Sept. 25, 2001), and in Atkins v. Virginia (arguing that execution of those with mental retardation violates Eighth Amendment's cruel^ and^ unusual^ punishments^ clause). Special thanks to Gerald Neuman, for his insight; to Kenji Yoshino, Ryan Goodman, Robert Wintemute, and an extraordinary group of Yale Law students who worked with me on those amicus briefs; and to Allon Kedem for his fine research assistance. ' The Paquete Habana, 175 U.S. 677, 700 (1900). Five years earlier, in Hilton v. Guyot, 159 U.S. 113 (1895),Justice Gray explained in more (^) detail: International law, in its widest and most comprehensive sense-including not only questions of right between nations, governed by what has been appropriately called the law of nations; but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of per- sons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation-is part of our law, and must he ascertained and administered by the courts of justice, as often as such questions are presented in litigation^ between^ man^ and^ man,^ duly^ submitted^ to^ their determination. Id. at 163.
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United States courts should not decide cases without paying "a decent respect to the opinions of mankind," in the memorable words of the Declaration of Independence. The framers and earlyJustices understood that the global legitimacy of a fledgling nation crucially depended upon the compatibility of its domestic law^ with^ the^ rules^ of^ the^ international^ system^ within which it sought acceptance.^3 Their recognition seems both prudent and sensible. Even today, for any nation consciously to ignore global standards not only would ensure constant frictions with the rest^ of^ the^ world,^ but^ also^ would^ diminish^ that^ nation's^ ability to^ invoke^ those^ inter- national rules that served its own national purposes.^4 Not surprisingly, the early Supreme Court saw thejudicial branch as a central channel for making international law part of U.S. law.^5 The original design and early practice of our courts envisioned that they would not merely accept, but would actively pursue, an understanding and incorporation of international law standards out of a decent respect for the opinions of mankind. When "there is no written law upon the subject,"Justice Horace Gray directed, "the duty still rests upon the judicialtribunalsof ascertainingand declaringwhat the law is, whenever it becomes necessary to do so, in order to determine the rights of parties to suits regularly brought before them."^6 By so saying, he echoed ChiefJustice John Marshall's memorable cadence in Marbury v.^ Madison:^ "[i]^ t^ is^ emphatically the^ province^ and^ duty^ of^ thejudicial department to say what the law is,"' a directive that nowhere limited thejudiciary's law-declaring function to cases involving domestic law. Thus, many of Marshall's early opinions expressly promoted the implicit or explicit inter- nalization of international law into U.S. domestic law: through statutory construction, direct invocation, and even constitutional interpretation. Within a year after writing Marbury, for example, Chief'Justice Marshall ruled in The CharmingBetsy that "an act of Congress ought never to be construed to violate the law of^ nations^ if^ any^ other^ possible^ construction remains."^8
2 THE DECLARATION OF INDEPENDENCE, (^) para. 1 (U.S. 1776) ("When in the Course of human (^) Events, it becomes necessary for one People to dissolve the Political Bonds which have connected them with one another,... a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.") (emphasis added). 'The author of the Declaration, Thomas Jefferson, heralded the law of nations as "an integral part... of the laws of the land." Letter from ThomasJefferson, Secretary of State, to M. Genet, French Minister (June 5, 1793), quoted in IJOHN BASSETT MOORE, DIGEST OF INTERNATIONALLAW 10 (1906). InJohnJay's words, "the United States had, by taking a place among the nations of the earth, become amenable to the law of nations." Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793); seeWare v. Hylton, 3 U.S. (3 DalI.) 199, 281 (1796) (Wilson,J.) ("When^ the United States declared their independence,^ they were^ bound^ to^ receive^ the^ law^ of^ nations,^ in^ its^ modern^ state^ of purity and refinement."); see also I Op. Att'y Gen. 26 (1792) (opinion of Attorney General Randolph) ("The law of nations, although^ not^ specially^ adopted^ by^ the^ constitution,^ or^ any^ municipal^ act,^ is^ essentially^ a^ part^ of^ the^ law of 4 the land."). Witness, for example, the first acts of East Timor's newly elected eighty-eight-member Parliament: signing the Universal Declaration of Human Rights and applying to join the United Nations. East Timor Becomes^ 191st^ U.N. Member Today, NY. TIMES, Sept. 27,2002, at Al. See also President Xanana Gusm5.o, Address to the United Nations General Assembly on East Timor's New Membership, UN Doc.^ A/57/P.V.20,^ at^ 10,^ 11-12^ (2002),^ stating: We are aware that we will be serving the interests of our people only if we honour our international commit- ments by signing the relevant conventions and treaties which not only safeguard our sovereignty and our inter- ests but also^ respect^ the^ sovereignty^ and^ interests^ of^ other^ peoples^ and^ States,^ particularly those^ of^ our^ region. (^5) SeeRESTATEMENT (THIRD) OFTHE FOREIGN RELATIONS LAW OFTHE UNITED STATES § 111 introductory note (1987) ("From the beginning, the law of nations, later referred to as international law, was considered to be incorporated into the law of the United States without the need for any action by Congress or the President, and the courts,^ State andfederal, have applied it and given it effect as the courts ofEngland had done.") (emphasis added); Louis Henkin, The Constitutionand UnitedStates Sovereignty: A Centusy of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853, (1987) ("[Ejarly United States courts and legislators regarded customary international law and treaty obligations as part of^ the domestic^ legal^ system.^ International^ law^ was^ domestic^ law.")^ (emphasis^ in^ original). For^ a^ fuller^ dis- cussion of the judicial branch as a channel of internalization of international norms into U.S. law, see generally Harold Hongju Koh, Is InternationalLaw Really State Law? 111 HARV. L. REV. 1824 (1998). 'Hilton v. Guyot, 159 U.S. at 163 (emphasis added). 35 U.S. (1 Cranch) 137, 177 (1803). sMurray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).
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Second, asJustice^ Stephen^ Breyer^ recently^ noted,^ the "Court^ has^ long^ considered^ as^ relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances."' 5 In Printz v. United States, he elaborated:
Of course, we are interpreting our^ own^ Constitution,^ not^ those^ of^ other^ nations,^ and there may be relevant political and structural differences between their systems and our own.... But their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem-in this case the problem of reconciling central authority with the need topreserve the liberty-enhancing autonomy of a smaller constituent governmental entity.' Third, in addition to situations involving^ parallel^ rules^ and^ empirical^ lessons,^ the^ Court has looked outside the United States when a U.S. constitutional concept, by its own terms, implicitly refers to a community standard-e.g., "cruel^ and^ unusual"^ "dueprocess^ of^ law,"^ "unrea- sonablesearches and seizures." In such cases, the Court has long since recognized that the rele- vant communities to^ be^ consulted^ include^ those^ outside^ our^ shores.^ For example,^ in^ deciding whether a particular punishment has become both "cruel and unusual," the Court has long taken notice of foreign and international practice to evaluate how "unusual" the practice has become.' 7 In Trop v. Dulles, the Court specifically held that the Eighth Amendment to the United States Constitution contains "evolving standards of decency that mark the progress of a maturing society." 8 In Tropand subsequent cases, the Court made clear that this "evolv- ing standard" should be measured by reference notjust to^ maturing^ American^ experience, but to foreign and international experience as well. In Coker v. Georgia,'" for example, the Court determined that international practices regard- ing the death penalty for rape were relevant to its "evolving standards" analysis. Five years later, in Enmund v. Florida, the Court noted that "the doctrine of felony murder has been abol- ished in England and India, severely restricted in Canada and a number of other Common- wealth countries, and is unknown in continental Europe."'^ In Thompson v. Oklahoma,^2 ' follow- ing the reasoning of Trop,JusticeJohn Paul Stevens's plurality opinion invalidated the death penalty for fifteen-year-old offenders, evaluating the Eighth Amendment's "civilized^ stan- dards of decency" in^ part^ by^ looking^ to^ the^ prohibition^ of^ the^ execution^ of^ minors^ by^ the Soviet Union and nations of Western Europe.^22 In addition, both the plurality and Justice Sandra Day O'Connor's concurrence found significant that three^ major^ international^ human
of decency and fairness which express the notions ofjustice of English-speaking peoples"); Rast^ v.^ Van^ Deman^ & Lewis Co., 240 U.S. 342, 366 (1916)^ (observing^ that^ the Constitution embodies^ "only^ relatively^ fundamental^ rules of right, as generally understood by all English-speaking communities"). Happily, over time, the Court has relaxed its "Anglophonia" and spoken more broadly about "civilized societies," without regard to the particular language they mayspeak. See, e.g., Ford v.Wainwright, 477 U.S. 399,409 (1986) (noting"the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity") (emphasis added). " Knight v. Florida, 528 U.S. 990, 997 (1999) (Breyer, J., dissenting from denial of certiorari). 16521 U.S. 898,921 n.l, 977 (1997) (Breyer,J., (^) dissenting) (citations omitted) (emphasis (^) added). 17 AsJustice Blackmun noted, "If the substance of (^) the Eighth Amendment is to turn on the 'evolving standards of decency' of the civilized world, there can be nojustification^ for^ limitingjudicial^ inquiry^ to^ the^ opinions^ of^ the United States." Harry A. Blackmun, TheSupreme Court and theLaw of Nations, 104 YALE L.J. 39,48 (1994); cf Estelle v. Gamble, 429 U.S. 97, 102 (1976) (observing that the Eighth Amendment's bar against cruel and unusual punish- ments embodies broad evolving^ "concepts^ of^ dignity,^ civilized^ standards,^ humanity and^ decency")^ (emphasis^ added). For a review of this history, see Harold Hongju Koh, Paying "Decent Respect" to World Opinion on the Death Penalty, 35 U.C. DAVIs L. REv. 1085, 1118-27 (2002), from which some of the discussion in the text derives. is (^) 3 5 6 U.S. 86, 101 (1958). 19433 U.S. 584, 596 n.10 (1977). 20 458 U.S. 782, 796 n.22 (1982). 2 1 487 U.S. 815, 830 (1988). 'Justice Stevens noted the views of"other nations that share our Anglo-American heritage, and.., the leading members of the Western European community." Id. at 829-30, 829 n.30.
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rights treaties-including, in its Article 68, the 1949 Geneva Convention, which the United States had ratified-explicitly^ prohibited^ juvenile death^ penalties.^
Thompson's reliance on foreign precedent drew a vigorous dissent from^ Justice^ Antonin^ Scalia, who denounced the plurality's reliance on international practice as "totally inappropriate." "[T] he views of other nations, however enlightened^ the^ Justices^ of^ this^ Court^ may^ think them to be," he argued, "cannot^ be^ imposed^ upon^ Americans^ through^ the^ Constitution.^24 But given the foregoing historyJustice Scalia erred in at least four ways. First, that history should have led ajustice devoted^ to^ originalism^ to^ look,^ like^ the^ framers^ themselves,^ toward-not away from-international opinion. Second, far from "imposing" the views of other^ nations on Americans, an^ originalist^ reading^ of^ the^ Eighth^ Amendment^ would^ have^ acknowledged that the views of other nations were not imposed on earlyAmericans;^ rather,^ Americans^ self- consciously appealed to those views in order to win global legitimacy for their fledgling republic. Third, on reflection, it makes little constitutional sense for our Supreme Court^ to^ decide^ these cases in a vacuum. The United States has never been a hermetically sealed legal system. It shares a common legal heritage, tradition, and history with many^ foreign^ constitutional^ sys- tems. For that reason, constitutional concepts like "liberty," "equal protection," "due process of law," and privacy have never been exclusive U.S.^ property,^ but^ have^ long^ carried^ global meaning. 25 To construe these terms in ignorance of these foreign and international prece- dents virtually ensures that our Supreme Court rulings will generate conflict and controversies with our closest global allies. Conversely, to construe these terms in light of foreign interpre- tations allows the United States to use the experience of other nations that share its common constitutional genealogy as laboratories to test workable social solutions^ to^ common^ con- stitutional problems.^
26 Fourth and finally, Justice Scalia himself has been far from consistent in^ insisting^ upon^ the irrelevance of foreign and international law.^ Depending upon^ the^ factual^ setting,^ he has^ not hesitated to take foreign practice into^ account^ or^ to^ argue^ in^ favor^ of^ construing^ U.S.^ law consistently with principles of international law. 27 Nevertheless, one year after ThompsonJus- tice Scalia narrowly carried the day in Stanford v. Kentucky, when a 5-4 majority of^ the^ Court held that, notwithstanding international opinion, the Eighth Amendment does not prohibit the execution ofjuvenile offenders who committed their crimes^ at^ age^ sixteen.2 5^ Justice^ Scalia's opinion announcing the^ Court'sjudgment,joined^ without^ comment^ byJustice^ O'Connor, applied the methodology of his Thompson dissent. Refusing to examine thejuvenile sentenc- ing practices of other countries, he asserted that in determining contemporary standards of
23 Id. (^) at831 n.34; id. at851 (O'ConnorJ., concurringin thejudgment) (citingAmerican (^) Convention on Human Rights, Nov. 22, 1969, Art. 4(5), 1144 UNTS 123 (entered into forceJuly 18, 1978); International Covenant on Civil and Political Rights, Dec. 19, 1966, Art. 6(5),999 UNTS 171, 175 (entered into force Mar. 23, 1976) [hereinafter ICCPRI; Geneva Convention Relative to^ the^ Protection^ of^ Civilian^ Persons^ in^ Time^ of^ War,^ Aug.^ 12,^ 1949,^ Art.^ 68, 6 UST 3516,3560,75 UNTS 287,330 (entered into force Oct. 21,1950)).Justice O'Connor's concurrence invoked the U.S. ratification of the Geneva Convention "to^ undercut^ any^ assumption^ that^ [recent^ congressional^ legislation has intended] to authorize the death penalty for some 15-year-old felons." Id. at 852. 24 Id. at 868 n.4 (Scalia, J., dissenting). 25 Cf Malinski v. NewYork, 324 U.S. 401,413-14 (1945) (Frankfurter,J., concurring) (arguing: "The safeguards of'due process of law' and 'the equal protection of the laws' summarize the history offreedom ofEnglish-speaking proples running back to Magna Carta and reflected in the constitutional development of our people."). 26 Cf New State Ice Co. v. Liebmann, 285 U.S. 262, 310-11^ (1932)^ (Brandeis,J.,^ dissenting)^ (noting^ that^ states of the United States can "serve as ...laborator[ies]" for "social and economic experiments"). 21 See, e.g., Mclntyre v. Ohio Election Comm'n, (^514) U.S. 334, 381 (1995) (Scalia,J., dissenting) (observing that Australian, Canadian, and English statutes banning anonymous campaign speech suggest that such bans need not impair democracy); Hartford Fire Ins. Co. v.California, 509 U.S. 764, 820 (1993) (ScaliaJ., dissenting) (opposing the assertion of extraterritorialjurisdiction by Congress over antitrust defendants' foreign activity on the ground that "this and other courts have frequently recognized that...^ statutes^ should^ not^ be^ interpreted^ to^ regulate^ for- eign 28 492 persons U.S. or 361 conduct (1989). if that regulation would conflict with^ principles^ of^ international^ law").
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persons with mental retardation would offend civilized standards of decency, in part because "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved."3 4^ Only a few months later, in Pattersonv. TexasJustices Stevens, Ginsburg, and Breyer dissented from denial of certiorari in a case challenging Texas's execution of ajuvenile offender, noting that "the issue has been the subject of further debate and discussion both in this country and in other civilized nations," which had produced an "apparent consensus ... among the States and in the international community against the execution of a capital sentence imposed on ajuvenile offender."^35 Sim- ilarly, when the petitioner^ in^ the^1989 Stanford case-still^ on^ death^ row^ after^ twenty^ years- petitioned the Supreme Court for an original writ of habeas corpus, citing Atkins, Justices Stevens, David Souter, Ginsburg, and Breyer all dissented from the Court's denial of the peti- tion." On the same day,Justice Breyer separately dissented from a denial of certiorari, argu- ing that Atkins's (^) consideration of foreign law required reexamination ofwhether prolonged incarceration on death row constituted cruel and unusual punishment per se.^37 Writing soon thereafter, one commentator tried to dismiss this trend, noting that "Atkins presented the Supreme Court with an invitation to begin the process of internalizing global norms against the death penalty, and give 'new energy to "vertical" efforts to internalize international law norms into domestic constitutional law.' But the Supreme Court declined the invitation."' But no one could say the same after this past year's Supreme Court Term, when the relevance of foreign and international law to constitutional interpretation arose during the Term's two most publicized cases. During oral argument in the Michigan affirmative action cases, Justice Ginsburg asked the solicitor general:
[W] e're part of a world, and this problem is a global problem. Other countries operating under the same equality norm have confronted it. Our neighbor to the north, Canada, has, the European Union, South Africa, and they have all approved this kind of, they call it positive discrimination.... (^) [T] hey have rejected what you recited as the ills that follow from this. Should we shut that from our view at all or should we consider whatjudges in other places have said on this subject?^39
Several months laterJustice Ginsburg answered her own question in a concurring opinion that invoked a view she had expressed in her extrajudicial writings."^0 Writing in Grutter v. Bollinger,Justice Ginsburg,joined byJustice Breyer, pointed out, "[t] he Court's observation that race-conscious programs 'must have a logical end point,' accords with the international understanding of the office of affirmative action," citing the text of the International Conven- tion on the Elimination of All Forms of Racial Discrimination, which was ratified by the United States in 1994. 4 "
" Atkins v. Virginia, 536 U.S. 304,316 n.21 (2002) (Stevens,J.). Even this modest truism evoked remarkably harsh rejoinders from the dissenters, ChiefJustice Rehnquist andJustice Scalia, who again insisted that "the viewpoints of other countries simply are not relevant" to an assessment of U.S. constitutional standards. Id. at 325 (Rehnquist, CJ., dissenting). s Patterson v. Texas, 536 U.S. 984, 984 (2002) (Stevens,J., dissenting).
. In re Stanford, 123 S.Ct. 472,472-73 (2002) (Stevens,J., dissenting). InJune 2003, the governor of Kentucky announced that he would commute Stanford's death sentence. At that point, Stanford had been on death row for two decades for a crime he had committed when he was seventeen. SeeAndrew Wolfson, PattonPardons 4 in Election Case and Will Commute Death (^) Sentence; Stanford's Family Celebrates; Victim's Sister Is Repulsed, CoURIER-J.,June 19, 2003, at LA. s Foster v. Florida, 123 S.Ct. 470, 471-72 (2002) (Breyer, J., dissenting). Alford, Federal Courts, supra note 12, at 782. Transcript of Oral Argument at 24, Gratz v. Bollinger, 123 S.Ct. 2411 (2003) (No. 02-516), available in 2003 U.S. TRANS LEXIS 27. 40 Compare Grutter v. Bollinger, (^539) U.S. 309, 342 (2003) (Ginsburg,J., concurring), (^) with Ginsburg & Merritt, supra note 33, at 282 ("In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human (^) rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups."). "' Grutter, 539 U.S. at 342 (citation omitted).
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just three days later, in the landmark case of Lawrence v. Texas,^4 " the Supreme Court struck down a Texas law banning consensual sodomy between adults of the same sex. Remarkably, the Court did not simply overrule its infamous seventeen-year-old decision in Bowers v. Hard- wick;^43 it announced that Bowers had been wrong when decided." Significantly, the Supreme Court had decided Bowers without even mentioning Dudgeon v. United Kingdom, issued five years earlier by the European Court of Human Rights, which had rejected same-sex sodomy prohi- bitions as a violation of the European Convention's right to privacy.^45 Dudgeon was never acknowledged by, distinguished by, or even properly cited to the Bowers Court.^46 Since Bowers, the European Court of Human Rights had reaffirmed the Dudgeon decision not once, but^ twice: in 1988 in^ Norris^ v.^ Ireland,^ and^ five^ years^ later^ in^ Modinos^ v.^ Cyprus.
47
Writing for the Court in Lawrence, Justice Kennedy took note^ of^ this^ parallel^ precedent, declaring:
To the^ extent^ Bowers^ relied^ on^ values^ we^ share^ with^ a^ wider^ civilization,^ it^ should^ be noted that the reasoning and holding in Bowers have been rejected elsewhere. The Euro- pean Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom .... Modinos v. Cyprus,... [and] Norris v. Ireland.... Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct.^ See^ Brief^ for^ Mary^ Robinson, et^ al.^ as Amici Curiae 11-12.The right the petitioners seek in this case has been accepted as an inte- gral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.^4 " Despite nearly a half century of coexistence between the United States^ Supreme^ Court and the European Court of Human Rights (ECHR), Lawrence was the first U.S. Supreme Court majority opinion ever to cite an ECHRjudgment in the text of its opinion. Moreover, as Gerald Neuman has noted, the pages cited byJustice Kennedy in the^ Mary^ Robinson^ amicus brief to support the proposition that "[o] ther nations... have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct" describe how in 1994 the Australian Parliament had exercised its constitutional power to implement the United Nations Human Rights Committee's interpretation^ of^ the International Covenant on Civil and Political Rights to override a contrary Tasmanian law.^49 Some therefore suggest that Lawrence marks a striking departure in U.S. constitutional inter- pretation. But what this ignores is that, in fact, both the U.S. Supreme Court dissent^50 and the
" 123 S.Ct. 2472 (2003). 4'478 (^) U.S. (^186) (1986). 45^ "'^ 123 S.Ct.^ at^ 2484. 45 Eur. Ct. H.R. (ser. A) para. 41 (1981). The Court found (^) the asserted state interests insufficient tojustify the "detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation." Id., para. 60. " The only brief in Bowers to cite European precedent had cited the European Commission of Human Rights report and pleadings in Dudgeon, but never cited or referred to the Court's judgment. See Brief of Amici Curiae Lambda Legal Defense and Education Fund at 15 nn.10, 24, Bowers v. Hardwick. 478 U.S. 186 (1986) (No. 01-102). Thus, as Lord Lester of Herne Hill has noted, although Bowers turned on a single vote, "[ n^ jo one drew the [U.S.] Supreme Court's attention to the importance^ of^ Dudgeon^ as^ a^ recent^ decision^ by^ the^ strongest^ international^ court of human rights, dealing with a closely analogous problem, and having potential persuasive value." Anthony Lester, The Overseas Trade in the American Bill of Rights, 88 COLUM. L. REv. 537, 560 (1988); see also Richard B. Lillich, The Constitution and InternationalHuman Rights, 83 AJIL 851 (1989). 4'Norris v. Ireland, 142 Eur. Ct. H.R. (ser. A) (1988); Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) (1993). 44 5 Lawrence, 123 S.Ct. at 2483. Gerald L. Neuman, The Uses ofInternationalLaw in ConstitutionalInterpretation, 98 AJIL 82,89-90 & n.40 (2004) (noting Human Rights Committee's interpretation in Toonen v. Australia, Communication No. 488/1992, UN Doc. CCPR/C/50/D/488/1992 5 (1994)). °Justice Scalia's dissent looked to Canadian law to invoke the specter (^) of "judicial imposition of homosexual marriage, as has recently occurred in Canada." Lawrence, 123 S.Ct. at 2497 (citing Halpern v. Toronto, 2003 WL 34950 (Ont. Ct. App.June 10, 2003)).
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the United States.^57 Of these, "[t]he only country that openly continues to execute child offenders within^ the^ framework^ of^ its^ regular^ criminaijustice^ system^ is^ the^ USA.""^8 Five^ of^ the last seven juvenile offenders executed worldwide have been executed in the United States.^9 Even within the United States, executions of child offenders since 1977 have been carried out in just seven states, over two thirds of^ them^ in^ Texas^ and^ Virginia.^ Given^ these^ facts,^ any commonsense understanding of a ban against "cruel and unusual punishments" should now include a practice deemed notjust unusual, but illegal by all but five^ countries^ in^ the^ world and all but a few states even in this^ country.^ Weighing foreign^ and^ international^ opinion^ into any evaluation of evolving standards of decency among civilized nations leads inexorably to the conclusion that killing child offenders now violates the Eighth and Fourteenth Amendments to the United States^ Constitution.^ Indeed,^ that^ was^ the^ conclusion^ of^ the^ Missouri^ Supreme Court in Roper v. Simmons, a case that will be heard by the United States Supreme Court early in the 2004-2005 Term. 60 More fundamentally, the last Supreme Court Term confirms that two distinct approaches now uncomfortably coexist within our own Supreme Court's globaljurisprudence.6 1^ The first is a "nationalistjurisprudence," exemplified by the opinions ofJustices Scalia and Clarence Thomas.^62 Thatjurisprudence is characterized by^ commitments^ to^ territoriality,^ extreme^ def- erence to national executive power and political institutions, and resistance to comity or inter- national law as^ meaningful constraints^ on^ national^ prerogatives. This line^ of^ cases^ largely refuses to look beyond U.S. national interests when assessing the legality of extraterritorial action. Moreover, these decisions have largely rejected international comity as a reason unilat- erally to restrain the scope of U.S. regulation, 6 3 and dismiss treaty or customary international law rules as meaningful restraints upon U.S. action.' To deal with perceived exigencies, these rulings have broadly deferred to federal executive power, largely unchecked^ byjudicial^ over- sight, "clear statement" principles, or claims of individual rights. 65 When advised of foreign legal precedents, these decisions have treated^ them^ as^ irrelevant, or^ worse^ yet,^ an^ impermis- sible imposition on^ the^ exercise^ of^ American^ sovereignty.^
66
A second, more venerable strand of "transnationalistjurisprudence," now being carried forward byJustices Breyer and Ginsburg,6 7^ began with Chief'Justice (and former congressional secretary for foreign affairs) John Jay and Chief'Justice (and former secretary of state) Marshall, (^57) AMNESTY REPORT, supra note 55. 58 Id. §5. 51 See (^) State ex rel. Simmons v. (^) Roper, 112 S.W.3d 397 (2003). ' Roper v. Simmons (No. 03-633), cert. granted (U.S.Jan. 26,2004), available at<http://supremecourvus.gov/orders/ courtorders/012604pzr.pdf>"of note that the views of (reviewing State ex rel. Simmons v. Roper, 112 S.W.3d 397, 411,413 (2003) (finding the international community have consistently (^) grown in opposition to the death penalty forjuveniles" en route to holding that "the execution of persons for crimes committed when they were under 18 years of^ age^ violates^ 'the^ evolving^ standards^ of^ decency^ that^ mark the progress^ of^ a^ maturing^ society,'"^ and^ is^ thus barred by Eighth and Fourteenth Amendments)). 61 This analysis builds on earlier discussions in Harold Hongju Koh, On AmericanExceptionalism, 55 STAN. L. REv. 1479, 1513-15 (2003); Harold Hongju Koh, InternationalBusinessTransactionsin^ United^ States^ Courts,^261 RECUEIL DES 62 COURS 13, 226-34 (1996). Despite his occasional extrajudicial writings, see, e.g.,supra note 32, (^) in his Court opinions ChiefJustice Rehnquist remains firmly in^ the^ nationalist^ camp. 61 See, e.g, Hartford Fire Ins. Co. v. California, (^509) U.S. 764 (1993) (rejecting international comity as (^) a bar against the exercise of Sherman Act jurisdiction over foreign reinsurance claims). 6 SeeHarold Hongju Koh, The "HaitiParadigmn"inUnited States Human Rights Policy, 103 YALE L.J. 2391,2413- (1994) (collecting cases). 65 See generally HAROLD HoNGU (^) KOH, THE NATIONAL SECURrY CONmTrurnON: (^) SHARING POWER AFrER THE IRAN- CONTRAAFFAIR 117-49 (1990)^ (reviewing^ cases). ' See, e.g., Foster v. Florida, 537 U.S.^ 990, 990^ n.*^ (2002)^ (Thomas,J.,^ concurring^ in^ denial^ of^ certiorari)^ ("[Tihis Court[] ...should not impose foreign moods, fads, or fashions on Americans."). "^7 Justices Stevens and Souter are also regular members of this camp. Through their extrajudicial statements and opinions of the past Terms, the two "swingiustices," Anthony Kennedy and Sandra Day O'Connor, have^ also increasingly demonstrated transnationalist leanings.
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20041 AGORA: THE UNITED STATES CONSTITUTION AND INTERNATIONAL LAW 53
"who were familiar with (^) the law of nations and comfortable (^) navigating by (^) it."68 In later years, this school was carried forward^ by^ Justice^ Gray^ in^ Hilton^ v.^ Guyot^ and^ ThePaqueteHabana,^69 and by three members of the Supreme Court-Chief Justice Melville Fuller and Justices David Brewer and William Day-who helped found the American Society of International Law, along with William Howard Taft, who later became president, then^ chiefjustice,^ of^ the United^ States.7° During the^ tenure^ of^ ChiefJustices^ Earl^ Warren^ and^ Burger,^ the^ transnationalist^ position^ was championed byJustices WilliamJ. Brennan, William 0. Douglas, 7 and-particularly in his famous Sabbatino dissent-Justice Byron White. 7 And in the^ Burger^ and^ early^ Rehnquist Courts, the leading transnationalist role was played byJustice Harry^ Blackmun.^73 Unlike nationalistjurisprudence, which^ rejects^ foreign^ and^ international^ precedents^ and looks for guidance primarily to national territory, political^ institutions,^ and^ executive^ power, the transnationalistj urisprudence assumes America's^ political^ and^ economic^ interdependence with other nations operating within the international legal system. Nor, significantly, do these Justices distinguish sharply between the relevance of foreign and international law,^ recogniz- ing that one prominent feature of a globalizing world is the emergence of a transnational law, particularly in the area of human rights, that merges the national and the international.^74 Addressing the American Society^ of^ International^ Law,Justice^ O'Connor^ noted^ that,^ increas- ingly, foreign and international law issues are coming before U.S. courts "because interna- tional law is no longer confined in relevance to a few treaties and business^ agreements.^ Rather, it has taken on the character of transnational law-what PhilipJessup has defined as law that regulates actions or events that transcend national frontiers."^75 Similarly,Justice Breyer has noted, time has blurred the differences between what my law professors used to call comparative law and public international law.... Formally speaking, state law is state law, but practically speaking, much of that law is national, if not international, in scope. Analogous^ developments internationally, including the^ emergence^ of^ regional^ or^ specialized^ international^ legal bodies, tend similarly to produce cross-countryresults that resemble^ each^ other^ more^ and^ more, exhibiting common, ifnot^ universal,^ principles^ in a^ variety^ of^ legal^ areas.
76
In such a transnationalist system, asJustice Breyer has noted, understanding and making reference to foreign constitutional precedents aids U.S. constitutional interpretation, "simply because of the enormous value in any discipline of trying to learn from the similar experience of others."^77 Under this view, domestic courts must play a key role in coordinating U.S. do- mestic constitutional rules with rules of foreign and international law, not simply to promote American aims, but^ to advance^ the^ broader^ development^ of^ a^ well-functioning^ international
Blackmun, supra note 17,^ at^ 49. 69 See supra note 1. 7' Breyer, supra note 33, at 265. 7' Harold Hongju Koh, The Liberal ConstitutionalInternationalismofJustice Douglas, in "HE SHALL NOT PASS THIS WAYAGAIN": THE LEGACY^ OFJUSTICE^ WILLIAM^ 0.^ DOUGLAS^297 (Stephen^ L.^ Wasby^ ed.,^ 1990). 72 See, e.g., Banco Nacional de Cuba v. Sabbatino,^376 U.S.^ 398,^439 (1964)^ (White,J., dissenting),^ discussed^ in^ Harold Hongju Koh, TransnationalPublic Law Litigation, 100 YALE L.J. 2347, 2362-63 (1991).
7. See Blackmun, supra note 17, at 49. For (^) elaboration of this theme, see Harold Hongju Koh,Justice Blackmun and the World Out There, 104 YALE L.J. 23, 28-31 (1994) (collecting cases). 71 Compare Harold Hongju Koh, The Globalization of Freedom, 26YALEJ. INT'LL. 305,306 (2001) (arguing that "as international legal academics, we must start treating transnational law as its own category. Domestic and interna- tional will soon become so^ integrated that^ we^ will^ no^ longer^ know^ whether^ to^ characterize^ certain concepts^ as^ local or global in nature."). See also id. (noting that^ the metric^ system,^ Greenwich^ Mean^ Time,^ and^ the term "dot.com" have "[a]ll... become, over time, genuinely transnational concepts in which a global standard has become fully recognized, integrated, and internalized^ into^ the domestic^ system^ of^ nearly^ every^ nation^ of^ the^ world"). 15 O'Connor, (^) supra note 33, at (^) 350. 76 Breyer, supra note (^) 33, at 267 (emphasis (^) added). " Id. at 266.
AGORA: THE UNITED STATES CONSTITUTION AND INTERNATIONAL LAW
while ignoring strong, contemporary indicia from kindred nations that, in fact, such criminal laws serve slight governmental interests and infringe concepts of personhood that were not fully recognized two centuries ago?"' Nationalist academics add a second objection, which one dubs the "international counter- majoritarian difficulty": the claim that U.S. constitutional protections that are responsive to "national consensus giving expression to the sovereign will of the American people" cannot "be interpreted to give expression to the international majoritarian impulse to protect the individual from democratic governance."' Yet this argument assumes that thejob ofjudges construing the Constitution is to give expression to majoritarian impulses, when their long- settled role (which, of course, gives rise to the domesticcountermajoritarian difficulty) has been to apply enduring principles of law to evolving circumstance without regard to the will of shift- ing democratic majorities.^90 In effect, the nationalists claim that unelected federaljudges may not interpret the Constitution^ by^ applying^ rules^ made^ by^ foreign^ governments^ or^ the^ world community at the expense of state prerogatives. But obviously, every court in the United States applies law that was not made by its own polity-including foreign law-whenever the court's own choice of law principles so direct. Nor is there anything necessarily antidemocratic about construing U.S. constitutional law in light of transnational law. As Justice Breyer recently noted:
[T] he transnational law that is being created is not simply a product of treaty-writers, legislatures, or courts. We in America know full well that in a democracy, law, perhaps most law, is not decreed from on high but bubbles up from the interested publics, affected groups, specialists, legislatures, and others, all interacting through meetings, journal articles, the popular press, legislative hearings, and in many other ways. That is the demo- craticprocessin action. Legislation typically comes long after this process has been under- way.Judicial decisions, particularly from our Court, work best when they come last, after experience has made the consequences of legislation apparent." WhatJustice Breyer describes is what I have elsewhere called "transnational legal process," the process whereby domestic systems incorporate international rules into domestic law through a three-part process of interaction, interpretation, and norm internalization.^92 Virtually
As Justice Kennedy noted in Lawrence: [A] Imost five years before Bowers was decided the European Court of Human Rights considered [Dudgeon,] 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. Dudgeonv. UnitedKingdom 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 [Dudgeon] decision is at odds with the premise in Bowers that the claimput Jorward was insubstantialin our Western civilization. 123 S.Ct. at 2481 (emphasis added). 0 Aford, FederalCourts, supra note 12, at 785-86. In fact, the very label "international majoritarian" is misleading. For U.S. courts are not deferring to the will of the majority of the world's peoples instead of deferring to American will; rather, our courts are looking to foreign practice for additional evidence of modern standards of decency in a civilized society. See, e.g., State ex rel. Simmons v. Roper, 112 S.W.3d 397 (2003). Significantly, neither Professors Alford nor Ramsey takes the hard-edged position espoused by nationalistJustices Scalia and Thomas in some recent opin- ions: namely, that international and foreign law precedents are never relevant to U.S. constitutional interpretation, a view that those Justices have sometimes ignored in practice. See cases cited supra notes 27, 31. "Justice Kennedy made the point eloquently in Lawrence: Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later gener- ations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Lawrence, 123 S.Ct. at 2484. "' Breyer, supra note 33, at 268 (emphasis added). 12 For elaboration (^) of this point, see Harold Hongju Koh, How Is InternationalHuman RightsLawEnforced? (^) 74 IND. LJ]. 1397 (1999); and Harold Hongju Koh, BringingInternationalLaw Home, 35 Hous. L. REV. 623 (1998); Harold Hongju Koh, Why Do Nations Obey InternationalLaw? 106 YALE L.J. 2599 (1997).
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all legal systems identify one or more mechanisms through which executive, legislative, and judicial institutions may domesticate international norms, with judicial interpretation of domestic constitutions representing only one such channel.^93 Through^ a^ time-honored^ dia- logic process, litigants, activists, publicists, and academic commentators seek to inform, influence, and improve this kind ofjudicial decision^ making.^ There^ is^ nothing^ antidemocratic about academics, nongovernmental organizations,judges,^ executive^ officials,^ Congress,^ and foreign governments interacting in a variety of private and public, domestic and interna- tional fora to make, interpret, internalize, and ultimately enforce rules of transnational law. To the contrary, it is precisely through this transnational legal process that interlinked rules of domestic and international law develop, and that interlinked processes of domestic and international compliance come^ about. In this transnational legal process, the several states, foreign governments, and international bodies do not represent competing sovereigns, all vying for the right to control America'sjudi- cial destiny. Rather, a transnationalistjurisprudence suggests, the United States expresses its national sovereignty not by blocking out all foreign influence but by vigorous "participation in the various regimes that regulate and order the international system." 94 The nationalists' suggestion that U.S. courts should disregard the rest of the civilized world by ignoring paral- lel foreign precedents only^ invites^ charges^ of^ parochialism,^ and^ undermines^ U.S.^ influence over the global development of human rights. Nationalist academics charge that American human rights advocates have used interna- tional and foreign legal^ materials^ selectively;^ in^ one^ commentator's^ words,^ refusing^ to^ "take the bitter with the sweet," 95 or in another's view, proposing "international sources ... for comparison only if they are viewed as rights enhancing."9 6^ Bizarrely, these scholars assume that United Statesjudges should construe a national bill of rights that the framers^ thought was the^ model^ for^ the^ world^ in^ light^ of^ the^ world's^ worst^ practices. What^ this^ claim^ misun- derstands is that those who advocate the use of international and foreign sources in U.S. constitutional interpretation are not urging U.S. courts to defer automatically to some kind of global "nose count." Instead, they are suggesting that the practices of other mature democ- racies-not those that lag behind developmentally-constitute the most relevant evidence of what Eighth Amendmentjurisprudence calls the "evolving^ standards^ of^ decency^ that^ mark the progress of^ a^ maturing^ society."^
97
My point is simple: those who advocate the use of international law in U.S. constitutional interpretation are not mere "international majoritarians"^ who believe^ thatAmerican^ consti- tutional liberties should be determined by a worldwide vote. Rather, transnationalists suggest that particular provisions of our Constitution should be construed with decent respect for international and foreign comparative law. When phrases like "due process of law," "equal protection," and "cruel and unusual^ punishments"^ are^ illuminated^ by^ parallel^ rules,^ empir- ical evidence, or community standards found in other mature legal systems, that evidence should not simply be ignored. Wise American judges did not do so at the beginning of^ the Republic, and there is no warrant for them to start now. In any event, Lautrence and Atkins may signal that the nationalists' heyday has^ finally^ passed. AsJustice Breyer recently noted, "By now.., it should be clear that the chicken has broken
'2 For a discussion of the appropriate relationship between domestic and international tribunal rulings, see Harold Hongju Koh, PayingDecent Respect to InternationalTribunalRulings, 96 ASIL PROC. 45 (2002). 94 ABRAM (^) CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGN'Y: (^) COMPLIANCE WITH INTERNATIONAL REGULATORYAGREEMENTS 27 (1995). 15 Ramsey, (^) supra note 12, (^) at 76-77. (^9) " Alford, Misusing Sources, supra note 12, at 67. 17 Trop v. (^) Dulles, 356 U.S. 86, (^101) (1958).
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