Post on 22-Apr-2023
Micah Kanters
The Case for Reliance on Foreign Law:
Supreme Court Jurisprudence and the International Experience
Introduction
Over the last twenty-five years the Justices of the Supreme Court
have been experiencing something of a philosophical divide over the
use of foreign and international law citations in their opinions.
While court’s around the world are increasingly relying on the
experiences of foreign nations to enhance their own jurisprudence, the
highest United States Court remains strongly divided over the reliance
on such sources. While the more liberal judges on the court maintain
that closing themselves off to the ideas and experiences of the global
community could only reduce the effectiveness of their rulings, the
conservative leaning Justices see this process as a corruption of
American law. For Justices Scalia and Thomas in particular, the idea
that reliance on foreign law could have any relevance to the
interpretation of the United States Constitution stands in direct
contrast to their originalist interpretive methodology. Nonetheless,
given the increasing prevalence of a global perspective on
constitutional courts, there is considerable question as to whether
the desire to protect what some may deem uniquely American aspects of
our law is sufficient to justify “asking American judges to close
their minds to good ideas.”1
However, in addition to the philosophical divide on the court,
there are a number of additional challenges presented by the
incorporation of foreign and international law citations in the 1 Sonia Sotomayor, How Federal Judges Look to International and Foreign Law Under Article VI of the U.S. Constitution, Address before the ACLU of Puerto Rico (April 2009). http://www.nytimes.com/video/us/politics/1194840839480/speech-to-the-a-c-l-u-of-puerto-rico.html
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opinions of the Supreme Court. Beyond objections of originalists, some
consideration must be given to judicial efficiency. Given the vast
array of foreign experience, it is possible that judges may simply
cherry pick examples that support their position, which would add
little value to court and could potentially lead to judicial gridlock.
Furthermore, there are logistical problems regarding which
jurisdictions to consider and how much weight a ruling in that
jurisdiction will be given. Finally, questions of judicial lawmaking
and democratic legitimacy must also be addressed, as judges could
arguably be seen as incorporating the rulings of foreign courts into
American law. In Part I, I will examine the history of comparative law
and the recent increase in the use of comparative analysis in the
constitutional realm. In Part II, I will look to the current use of
foreign and international law citations by the Supreme Court. Finally,
in Part III, I will discuss the implications of expanding reliance on
non-domestic sources by examining how such reliance could have
impacted the court’s ruling in Citizen’s United v. Federal Election Commission.2
Part I: History of Comparative Law
A. Origins
Comparisons in law have been long used by cultures to expand
their own legal knowledge and gain perspective on the laws of their
neighbors. In the ancient world, some Greek city states adopted the
laws of other states. Later, during the formation of Roman law, Greek
legal ideas were quite influential in the development of a part of the
law called the jus gentium.3 Although these examples represent less of a
2 558 U.S. 310 (2010).3 Walther Hug, The History of Comparative Law, 45 Harv. L. Rev. 1027, 1030 (1932).
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study of comparative law and more the adoption of legal ideas from
neighbors and predecessors, it nonetheless contains a strong parallel
to underlying rationale for current uses of comparative law.
During the middle ages, following the fall of the West Roman
Empire, there was limited use of comparative legal studies, despite a
rather favorable environment for such pursuits. During this period,
Roman law began to co-exist in many areas with Germanic law; however
these coexisting legal traditions appear to have never triggered
extensive comparative study.4 In the Renaissance, however, comparative
law first began to gain hints of momentum. In France, legal customs
began to be committed to writing, which played a significant role in
facilitating the methodical study of law and associated texts, and in
both France and Germany leading jurists “made the customary law an
object of scientific treatment and systematic comparison.”5 However,
while a new found focus on legal study and scholarship emerged in
these countries, comparative studies were still quite limited.6
The 17th and 18th centuries mark the true beginning of modern
comparative law, as great scholars began advocating for scientific
comparative legal studies. In England, Francis Bacon began urging the
development of a universal system of justice, by which the laws of
each country may be tested and improved.7 In France, Montesquieu wrote
his famous treatise “The Spirit of the Laws,” 8 which incorporated a
distinctly comparative perspective in advocating the necessity of
4 Id. at 1333.5 Id. at 1041.6 Id. at 1042.7 “[T]o determine which of those systems is most agreeable to reason, we must take them each as a whole and compare the m in their entirety.” Francis Bacon,De Dignitate et Augementis Scientaiarum (1923) bk. VIII, c.3.8 Baron De Montesquieu The Spirit of the Laws (1949) New York: Hafner.
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considering the laws of similarly situated nations in evaluating the
effectiveness of one’s own law.9 However, the ideas of these individual
scholars were soon overtaken in the 19th century by the process of
national unification and creation of various national codes.10 During
this period legal scholars tended to focus internally, as they sought
to interpret and analyze the laws of their own country with minimal
attention toward comparative analysis. However, as the global
community grew throughout the 20th century, with increased interactions
between countries, the introduction of international governing bodies
like the League of Nations, and the establishment of comparative legal
studies within academic institutions around the world, comparative law
emerged with significant momentum into the 21st century. One
significant focus of this momentum is on the area of comparative
constitutional law.
B. Contemporary Support for Comparative Constitutional Law
In recent years, a considerable excitement has developed
surrounding comparative constitutional law in the global community.
While scholars are divided as to whether this is a mere passing fad or
the revival of a substantive area of study, this newfound focus on
comparative law may be attributed to a number of factors. Advances in
technology, the increased use of multi-lateral human rights treaties,
greater availability of legal education in foreign jurisdictions, and
the far reaching impacts of “globalization” have all contributed to
the increasing prevalence of comparative constitutional analysis.
a. Globalization
9 Id. bk XXIX c. 11.10 Hug, supra fn 3, 1053.
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Of these factors, perhaps the most commonly cited is that of
“globalization.”11 Although this is a rather amorphous term to explain
the growth of comparative legal studies, it nonetheless reflects the
increasingly permeable nature of national borders. Even in the United
States, we can see elements of this process in the relationship of the
US with Puerto Rico and the increased prevalence of multinational
trade agreements. The development of this permeability may be
attributable, in part, to the increased prevalence of international
business transactions and the accompanying litigation. The development
of this international corporate environment has contributed to the
permeation of Western liberal thought throughout the world. In this
way, globalization may be described as “neoliberal policy choices
clothed in the language of economic inevitability.”12 Although legal
actions related to such corporations are generally limited to
commercial litigation in the civil realm, the process nonetheless
creates increased cross-border legal communication, while highlighting
the benefits of increased harmonization and unification of the law.13
However, it is important to acknowledge that this process of
globalization largely flows from distinctly liberal Western thought.
Although it is possible that this focus on Western ideas may wane as
the global environment continues to develop and countries like China
rise to a greater role in the international community, the current
environment raises concerns as to whether this process will lead to
something of a whitewashed legal culture. Although the use of
comparative legal studies are often touted as supporting increased 11 David J. Gerber, Globalization and Legal Knowledge: Implications for Comparative Law, 75 Tul. L. Rev. 949, 950 (2001).12 Horatia Muir Watt, Globalization and Comparative Law, in The Oxford Handbook of Comparative Law 579, 580 (Nov. 2006).13 Id. at 581.
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multiculturalism, their nonetheless remains the potential that such an
approach may result in the erosion of the very diversity it sought to
promote.
b. Human Rights Treaties
In addition to the effects of globalization, the growing
universalism of human rights law is also contributing to the increased
prevalence of comparative constitutional studies.14 As one scholar
reflected, “[There is] a globalization of human rights, a phrase that
refers to the ever stronger consensus (now nearly worldwide) on the
importance of protecting basic human rights, the embodiment of the
consensus in legal documents, such as national constitutions and
international treaties, and the related decisions to enlist
independent judiciaries as instrument to help make the protection
effective in practice.”15
This development of international human rights law has also
provided a foundation upon which constitutional courts may find
evidence of emerging global consensus regarding the fundamental rights
of all people. Even on the United States Supreme Court, international
human rights treaties have served as evidence of prevailing social
norms with regard to what constitutes cruel and unusual punishment.16
This process also provides a built-in common ground for comparative
analysis where national rules are developed based on international
agreements. In this way, countries whose constitutional law was
influenced by international human rights law almost necessitate the
14 Id. at 580.15 Michael D. Kirby, International Law – The Impact on National Constitutions, 97 American Society of International Law Proceedings 265, 266 (2003).16 See Lawrence v. Texas, 539 U.S. 558, 572-73 (2003) and Thompson v. Oklahoma, 487 U.S. 815, 869 (1988).
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interpretation of their constitution from an international perspective
because the law itself is internationalized; creating a strand of law
that some call “human rights constitutionalism”17
The growth of the connection between international human rights
and domestic constitutional law is largely rooted in the development
of human rights treaties starting in the mid-1900s. Beginning with the
1948 Universal Declaration of Human Rights, and continuing with the 1950
Convention for the Protection of Human Rights and Fundamental Freedoms, as well as
the 1966 Covenant on Civil and Political Rights, these documents served as a
textual and legal foundation for the incorporation of various rights
into domestic law.18 However, while these declarations and conventions
formed a critical foundation for current comparative studies, their
full impact was not felt until after the end of the Cold War. It was
only after the fall of the Iron Curtain that largely superficial
discussions of human rights gave way to more serious considerations,
as a significant ideological barrier to a truly global legal
environment fell away. This shift is reflected in part by the first
major human rights text following the end of Socialism: the non-
binding 1993 Vienna Declaration and Programme of Action. The document
established a foundation for the exchange of jurisprudence on human
rights issues with its famous line, “all human rights are universal,
indivisible, interdependent and interrelated,” and embodies a renewed
commitment for the national application of internationally derived
human rights standards. 19
17 Li-Ann Thio, Reading Rights Rightly: The UDHR and its Creeping Influence on the Development of Singapore Public Law, 24 Sing. J. of Legal Stud. 264, (Dec. 2008).18 Id.19 UN General Assembly, Vienna Declaration and Programme of Action, Art. I Sec. 5, A/CONF.157/23 (12 July 1993).
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The incorporation of human rights law on a national level may be
seen in a variety of countries. In Canada, the 1982 Canadian Charter
of Rights and Freedoms contains strong parallels to the 1966
International Covenant on Civil and Political Rights, the 1948
Universal Declaration of Human Rights, and the 1950 European
Convention for the Protection of Human Rights and Fundamental
Freedoms.20 In the United Kingdom, one may find a similar example in
the 1998 UK Human Rights Act. As the full title reveals – Act to give
further effect to rights and freedoms guaranteed under the European Convention on Human
Rights, to make further provisions with respect to holders of certain judicial offices who become
judges of the European Court of Human Rights; and for connected purposes – the law was
designed to incorporate an international human rights regime rather
than establishing a distinctly British set of laws.21 In South Africa
as well, international human rights laws formed the basis for several
constitutional provisions, and the Constitution even goes so far as to
mandate consideration of international law when interpreting
legislation. Subsection 233 of the South Africa Constitution
establishes that, “[w]hen interpreting any legislation, every court
must prefer any reasonable interpretation of the legislation that is
consistent with international law over any alternative interpretation
that is inconsistent with international law.”22 Through this provision,
South Africa went beyond merely incorporating international human
rights standards and established an expectation that all domestic
legislation will be interpreted in line with international law.
c. Communication between Judges
20 Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion, 151 (Oxford University Press, 2011).21 Human Rights Act [1998] c. 42 (U.K.).22 Constitution of the Republic of South Africa, May 8, 1996, Ch. 14 Sec. 233.
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Another structural cause for the recent increase in the use of
comparative constitutional law is the increased communication between
judges. Particularly in the realm of constitutional law, judges are
regularly engaging in “transnational conversations” as they share
research, experience, and insight.23 Much of this increased dialogue is
a reflection of technological advancements that ease not only
communication between judges but also the ability to research foreign
jurisdictions. This change in technology is further bolstered by a
rise in the prevalence of lawyers who receive some portion of their
legal education abroad and the increased use of textbooks that
incorporate comparative analysis.24 Furthermore, judges throughout the
world have begun to engage in extensive studies of comparative
constitutionalism through the use of foreign citations. As Aharon
Barak, former president of Supreme Court of Israel reflected;
“We may have here the beginning of an intellectual revolution. Inthe past, we had the following phenomena: Judges did not tend to rely on comparative law; lawyers did not cite comparative law to judges; law schools did not stress comparative law; scholars did not emphasize comparative law; judges did not tend to rely on comparative law; and so on. This vicious circle is coming to its end. Judges will start to rely on comparative law; lawyers will tend to cite it to judges; law schools will start teaching comparative law; scholars will be encouraged to research in comparative law; judges will rely more and more on comparative law.”25
Part II: Foreign Citations and the United States Supreme Court
Despite the development of this newfound passion for comparative
constitutional law in the global community, the United States Supreme 23 Paul W. Kahn, Comparative Constitutionalism in a New Key, 101 Mich. L. Rev. 2677, 2679(2003).24 Id. 25 Aharon Barak, Response to the Judge as Comparatist: Comparison in Public Law, 80 Tul. L. Rev. 195 (2005).
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Court remains strongly divided on the subject and rarely incorporate
considerations of international law or the decisions of foreign courts
into their opinions. When such reasoning is included, it is the point
of significant contention between the majority and dissent, as the
judges attempt to find the proper role of international law in United
States Supreme Court jurisprudence.
Perhaps stimulated in part by Justice Breyer’s pronouncements
before the American Society of International Law that a “global legal
enterprise …is now upon us[,]”26 new Justices have been questioned
extensively for their perspective on the use of foreign and
international law citations. During Chief Justice Roberts’s
confirmation hearing, he expressed concerns regarding citations to
decisions handed down by judges that were neither appointed by the
American president nor confirmed by the senate.27 Justice Sotomayor and
Justice Kagan faced similar questions, although they maintained a far
more positive stance, as Justice Sotomayor argued that “[t]o
discourage the use of foreign or international law [would] be asking
American judges to close their minds to good ideas.”28
During Justice Kagan’s confirmation hearing, one senator even
expressed dismay at the fact that Kagan required students to take a
course in international law as dean of Harvard Law School.29 In
response to this apparent focus on the use of foreign and
international law, Justice Ginsberg felt compelled to address the
26 Stephen Breyer, The Supreme Court and The New International Law, Address at the American Society of International Law (Apr. 4, 2003), http://www.supremecourtus.gov/publicinfo/speeches/sp_04-04-03.html.27 151 Cong. Rec. 20639 (2005) (statement of Judge John Robert).28 Sotomayor, supra fn 1.29 Lyle Denniston, Ginsburg on Kagan and Foreign Law, SCOTUSblog, (July 30th 2010) http://www.scotusblog.com/2010/07/ginsburg-on-kagan-and-foreign-law/.
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belief of certain senators that foreign law has no place in American
law. In a speech at American University in Washington, Ginsberg
explained that “[F]rom the birth of the United States as a nation,
foreign and international law influenced legal reasoning and judicial
decision-making. Founding fathers, most notably, Alexander Hamilton
and John Adams, were familiar with leading international law
treatises, the law merchant, and English constitutional law. And they
used that learning as advocates in legal contests…”30 She went on to
argue that;
“[I]f U.S. experience and decisions may be instructive to systemsthat have more recently instituted or invigorated judicial reviewfor constitutionality, so too can we learn from other now engagedin measuring ordinary laws and executive actions against the fundamental instruments of government and charters securing basicrights…The U.S. judicial system will be the poorer, I have urged,if we do not both share our experience with, and learn from, legal system with values and a commitment to democracy similar toour own.”31
Despite this well-reasoned argument by Justice Ginsberg, however,
there remains strong opposition to the use of foreign and
international citations by the more conservative members of the court.
In the case of Thompson v. Oklahoma, Justice Scalia wrote;
“The plurality's reliance upon Amnesty International's account ofwhat it pronounces to be civilized standards of decency in other countries… is totally inappropriate as a means of establishing the fundamental beliefs of this Nation… We must never forget thatit is a Constitution for the United States of America that we areexpounding…[W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened
30 Ruth Bader Ginsburg, A Decent Respect to the Opinions of Humankind: The Value of a Comparative Perspective in Constitutional Adjudication, Address at the International Academy of Comparative Law (July 30, 2010). http://www.supremecourt.gov/publicinfo/speeches/viewspeech/sp_08-02-1031 Id.
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the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.32
For Justice Scalia and his fellow originalists, including foreign
and international law citations in the judgments of the Supreme Court
is not only without value, but actually has the potential to corrupt
judicial interpretation by removing focus away from the original
intent of the founders.
Despite this fierce division, foreign and international law
citations have nonetheless entered Supreme Court case law over the
last twenty-five years. Often focused on the interpretation of “cruel
and unusual punishment,” non-domestic law citations have been utilized
to examine foreign experience, international human rights treaties,
and the judgments of foreign constitutional courts, as reflected by
the cases of Roper v. Simmons, Printz v. United States, and Knight v. Florida. However,
while such comparisons do take place, they are rather rare and remain
the source of considerable controversy.
A. Roper v. Simmons
Looking first to Roper v. Simmons, the court considered the
constitutionality of the juvenile death penalty under the 8th
amendment. Ultimately holding that the execution of juveniles
constitutes “cruel and unusual punishment[s],”33 the court’s decision
brought the United States closer in line with international law on
capital punishment. Although the case was not specifically decided or
argued on the basis of international law, the majority did make
references to the United Nations Convention on the Rights of the Child
32 Thompson v. Oklahoma, 487 U.S. 815, 869 (1988)33 US Const. amend. VIII.
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and on amicus briefs by both the European Union and foreign
observers.34 Justice Kennedy went so far as to state that is was “
proper that we acknowledge the overwhelming weight of international
opinion against the juvenile death penalty…The opinion of the world
community, while not controlling our outcome, does provide respected
and significant confirmation for our own conclusions.”35
The 8th amendment and its prohibition on “cruel and unusual
punishments” is an area particularly ripe for comparative analysis.
The court has continually held that this provision of the constitution
must be approached in a “flexible and dynamic”36 manner, by measuring
punishments against “the evolving standards of decency that mark the
progress of a maturing society.”37 Additionally, previous considerations
of 8th amendment cases involved the consideration and mention of
international law. In Trop v. Dulles, the court referenced unanimity among
“the civilized nations of the world” in declaring de-nationalization
as a form of cruel and unusual punishment.38 In Coker v. Georgia, the court
found that the laws of other countries were “not irrelevant” in
evaluating the use of the death penalty in rape cases.39 Even in
Thompson v. Oklahoma, when addressing the application of the death
penalty to juveniles specifically, the court referred to its decision
as consistent with international law and even referenced the
prohibition on capital punishment for juveniles contained in the
International Covenant on Civil and Political Rights (ICCPR), the
American Convention on Human Rights (ACHR) and the Geneva Convention
34 Roper v. Simmons, 125 S. Ct. 1183, 1199 (2005).35 Id. at 1200.36 Greg v. Georgia, 428 US 153 (1976), 171.37 Trop v. Dulles, 356 US 86 (1958), 101.38 Id. at 102.39 Coker v. Georgia, 433 US 584, 596 (1977).
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Relative to the Protection of Civilian Persons in Time of War (“Geneva
Convention”).40 Despite this seemingly well-grounded justification for
consideration of international law and the decisions of foreign
courts, the dissent in Roper nonetheless takes an adamant position that
such considerations have no place in the reasoning of the Supreme
Court.
The majority opinion in Roper was careful to qualify their
discussion of international law, stating that while international
considerations can be “instructive” in evaluating whether a punishment
is cruel and unusual; such a comparison has limited constitutional
function. As Justice Kennedy wrote; “It does not lessen our fidelity
to the Constitution or our pride in its origins to acknowledge that
the express affirmation of certain fundamental rights by other nations
and peoples simply underscores the centrality of those same rights
within our own heritage of freedom.”41 However, the dissent found this
argument to be entirely unconvincing and found including
considerations of international law to be antithetical to the purpose
of the Constitution. A Scalia wrote, “…I do not believe that the
meaning of our Eighth Amendment, any more than the meaning of other
provision of our constitution, should be determined by the subjective
views of five Members of this Court and like-minded foreigners…”42
The dissent maintained that by extending recognition to
international law in this manner, the majority was effectively
ratifying international treaties that the United States explicitly
choose not to join, like the Convention of the Rights of the Child
(CRC) or the ICCPR, which was only signed subject to a reservation 40 Thompson, 487 U.S. at 830-831.41 Roper, 125 S. Ct. at 1200.42 Id. at 1217.
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regarding the imposition of a juvenile death penalty. Furthermore,
they maintained that the majority’s discussion of international law
was premised on the faulty idea that American laws should conform to
the laws of other countries. The dissent made particular issue of the
majority’s reference to British law, characterizing it as
“indefensible,”43 because they were considering “a legal, political,
and social culture [that has developed] quite different[ly] from our
own,”44 rather than considering the original meaning of the
constitution. Finally, the dissent made considerable issue of the fact
that the court appeared to cherry pick where they would include
considerations of international law. As Scalia maintained “[t[he Court
should either profess its willingness to reconsider all these matters
in light of the views of foreigners, or else it should cease putting
forth foreigners’ views as part of the reasoned basis of its decisions.”45
B. Printz v. United States
In Printz v. United States, the Supreme Court considered the experiences
of foreign nations while addressing the constitutionality of the
Handgun Violence Protection act, which required an immediate
background check of individuals purchasing handguns.46 Although the
court ultimately held the act unconstitutional because there was no
basis for a congressional law to be directly executed by state
officers, Justice Breyer wrote a separate dissent that looked abroad
for examples of how other countries handled the issue of federally
imposed local action.47 Arguing that other countries have faced nearly
43 Id. at 1227.44 Id. 45 Id. at 1228.46 Printz v. United States, 521 U.S. 898 (1997).47 Id. at 976.
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identical problems, Justice Breyer maintained that “[a]t least some
other countries…have found that local control is better maintained
through the application of a principle that is the direct opposite of
the principle the majority derives from the silence of our
Constitution.”48
Justice Breyer goes on to reference the federal systems in
Switzerland, Germany, and the European Union and the practice of
constituent states rather than federal bureaucracies implementing law
and regulations.49 Utilizing these examples, he argues that these
countries employ such a system because they believe it actually
interferes less with the independent authority of the “state,” member
nation, or subsidiary government while helping to safeguard individual
liberties.50 While Breyer acknowledges that that their job is to
interpret the United States Constitution51, he maintains that “[other
countries’] experience may nonetheless cast an empirical light on the
consequences of different solutions to a common legal problem…52
Through such analysis it becomes possible to examine the potential
outcomes of a given decision in a far more concrete sense and
potentially avoid unforeseen harms.
Despite this well-reasoned justification, Justice Breyer’s
suggestion of examining the law from a comparative perspective was
rejected by the majority. As Justice Scalia wrote, “[w]e think such
comparative analysis inappropriate for the task of interpreting a
48 Id. 49 Id. at 977.50 Id at 966-967.51 “Of course we are interpreting our own Constitution, not those of other nations, and there may be relevant political and structural difference betweentheir systems and our own…” Id. 52 Id.
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constitution, though it was of course quite relevant to the task of
writing one.”53
C. Knight v. Florida
In Knight v. Florida, the Supreme Court considered the decisions of
foreign constitution courts when denying certiorari on a case
concerning undue delay in the administration of the death penalty.54
While the majority and concurrence in this case are rather short,
Justice Breyer wrote an extensive dissent that referenced several
decisions by foreign constitutional courts. Looking to decisions by
the Supreme Court of India, the Privy Council of Jamaica, the Supreme
Court of Zimbabwe, the European Court of Human Rights, and the Supreme
Court of Canada, Breyer sought to highlight a growing consensus among
the international community against the death penalty.55
While Justice Breyer acknowledged that these foreign authorities are
not binding on the court, he argued that the consideration of these
sources could serve to enhance the accuracy and effectiveness of the
court’s rulings. Furthermore, Breyer maintains that the court actually
has an established practice of referencing foreign courts who “applied
standards roughly comparable to our own constitutional standards in
roughly comparable circumstances.”56
Part III: The Case for Expanding Reliance
53 Id. at fn 11.54 Knight v. Florida, 528 U.S. 990, (1999).55 Id. at 462-463.56 Id. at 465.
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Reflecting on the cases of Roper v. Simmons, Printz v. United States, and
Knight v. Florida, one may begin to see how foreign and international law
citations can play a useful and even critical role in the
interpretation of domestic constitutions. In addition to providing
insight into the perspective of the international community, such
consideration also minimizes the potential for unforeseen consequences
from a given ruling and can provide guidance when determining whether
to overrule precedent. However, these benefits also come with
challenges as considerations of judicial efficiency, democratic
legitimacy, and contrary interpretive methodologies are strongly
implicated by the consideration of non-domestic law. Looking to the
Supreme Court case Citizens United v. Federal Election Commission57, and
considering how the inclusion of foreign and international law
citations would have affected the decision, one may begin to see both
sides of the issue into sharp relief.
A. Citizens United v. FEC
In 2010, the Supreme Court issued a landmark decision in the case
of Citizens United v. Federal Election Commission.58 In that case, the court
invalidated §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA),
a federal law prohibiting corporations or unions from using their
general funds for speech directed at influencing the outcome of an
election on the basis of First Amendment protections. The court’s
ruling however, extended beyond the specific provisions §203. Finding
that they would be unable to resolve the dispute on a narrower basis,
the court held that any government suppression of political speech
57 558 U.S. 310 (2010).58 Id.
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based solely on the speaker’s corporate identity was a violation of
the First Amendment.
Looking to the published opinions of the Justices in Citizens United,
it is clear that the case was the source of considerable debate.
Although Justice Kennedy authored the plurality opinion, there were
two separate dissents, and four concurring opinions.59 This controversy
stemmed not only from the importance of First Amendment jurisprudence
and campaign finance laws, but also the existence of somewhat
contradictory precedents. Furthermore, the plurality and dissent were
starkly divided on the issue of whether independent expenditures by
corporations give rise to corruption or the appearance of corruption.
While the plurality maintained that insufficient evidence had been
presented to justify restricting corporate political speech, the
dissent asserted that the connection between corruption and campaign
contributions is evident based on common sense, and that the lack of
evidence was solely because “the Government had no reason to develop a
record at trial for a facial challenge the plaintiff had abandoned.”60
Given the challenges of conflicting precedent and assertions of
limited evidence, as well as the extensive international experience
with campaign finance laws, the case of Citizens United serves as an
excellent example of where the Supreme Court could incorporate the
experiences of the international community in rendering their
judgments. Although some members of the court have expressed repeated
distain for the use of citations to foreign authorities in their
opinions, the particular challenges of a case like Citizens United
highlight how such considerations could provide a more complete and
59 Id. 60 Id. at 457.
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accurate basis for rulings, assist in the evaluation of precedents,
and limit the potential for judgments that lead to negative,
unforeseen consequences.
B. Benefits of the Comparative Perspective
a. Evidence of Corruption
By broadening the scope of the court’s consideration to the
international realm, assertions by the plurality that independent
expenditures do not lead to corruption or the appearance of corruption
would have been difficult to maintain. Foreign jurisdictions have
grappled with issues of campaign finance laws for many years and some
have even addressed the issues presented by Citizen’s United. Furthermore,
there are extensive legal restrictions in place across the
international community focused on limiting the ability of
corporations to influence the political process. Although there is
tremendous variety in the approaches of foreign jurisdictions to the
regulation of corporate political speech, this variety is indicative
of how complex and difficult the issue is to appropriately address.
Given that fact, it seems counterintuitive that the Supreme Court
should limit itself to considerations of election related corruption
solely in the United States. Although the approaches may be varied,
virtually every democratic country faces the same challenges and an
evaluation of those experiences could serve to enhance the potential
for effective, accurate rulings while minimizing the risk of
unforeseen consequences.
The plurality in Citizen’s United relied heavily on the assertion that
independent expenditures by a corporation do not give rise to quid pro
quo corruption.61 They based this reasoning largely on the court’s 61 Id. at 357.
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ruling in Buckley v. Valeo, where, although the Court found that the
government’s interest in preventing corruption or the appearance of
corruption was sufficiently important to allow limits on direct
contributions, they declined to extend that justification for
independent expenditures. 62 The rationale for this differentiation was
based on the idea that “[t]he absence of prearrangement and
coordination of an expenditure with the candidate or his agent not
only undermines the value of the expenditure to the candidate, but
also alleviates the danger that expenditures will be given as a quid pro
quo for improper commitments from the candidate.”63 However, relying so
heavily on this justification ignores the potential for types of
corruption that do not take the form of a quid pro quo arrangement.
Furthermore, the idea that a lack of coordination is sufficient
protection against corruption ignores the reality that it is
exceedingly difficult to prevent such coordination or prove that it
exists. Even if it were possible to ensure that corporations were not
working directly with the candidates they support, this would hardly
protect against corporations receiving special treatment in terms of
access to the candidate, influence over their agenda, and
consideration when voting on relevant issues. As Justice Stevens wrote
in his dissent “[c]orruption can take many forms…the difference
between selling a vote and selling access is a matter of degree, not
kind. And selling access is not qualitatively different from giving
special preference to those who spend money on one’s behalf.”64
Unfortunately, despite the seemingly myopic viewpoint of the
plurality, there was extremely limited evidence presented to the Court
62 424 U.S. 1, 45 (1976).63 Id. at 47.64 Citizens United, 558 U.S. at 447-448.
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regarding instances of corruption attached to independent political
expenditures. The dissent was able to point to the case of Caperton v. A.T.
Massey Coal Co.,65 where the court found that an individual who expended
roughly three million dollars in support of a judge’s election
campaign played such a “pivotal role in getting Justice Benjamin
elected [that it] created a constitutionally intolerable probability
of bias.”66 However, the majority countered this argument through an
analysis of Buckley, which they maintained rejected limitations on
independent expenditures, as they lack the risk of corruption
associated with direct contributions. In support of this point, the
plurality points to the fact that the record in McConnell v. FCC,67 despite
being over 100,000 pages long, contains no direct examples of votes
being exchanged for expenditures.68 Despite the rather dubious
conclusion that a lack specific examples where votes were traded for
expenditures necessarily means that independent expenditures do not
have a corrupting effect, the dissent was constrained by a lack of
concrete evidence to the contrary. If the Justices had looked abroad,
however, and considered the experiences of the international
community, they would have been able to better analyze the potential
corrupting influence of independent expenditures by looking to
concrete examples of how these types of campaign finance laws play out
in foreign jurisdictions.
b. Evaluating Precedent
In addition to providing critical evidence of the potential
corrupting effect of corporate expenditures on the political process,
65 556 U.S. 868 (2009).66 Id. at 869.67 540 U.S. 93 (2003).68 Citizens United, 558 U.S. at 360.
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consideration of the international experience could also serve as an
important tool in evaluating whether to overturn precedent. When the
Supreme Court is faced with overruling past precedent or reconciling
an apparent contradiction in their jurisprudence, there is necessarily
some form of ambiguity in the case facts or law that has led the court
to apply, or consider applying, an alternative interpretation.
Therefore, such controversies often necessitate that the Justices rely
more heavily on their underlying interpretive philosophies, as the law
itself may provide equally strong justification for a variety of
rulings. When faced with such cases, it could be advantageous for the
court to look abroad and examine how other constitutional courts have
handles similar issues. This would be a particularly helpful process
when the controversy before the court involves issues that have been
heavily litigated overseas. Campaign finance laws and the protection
of free speech is one such issue.
In determining whether to overrule past precedent, the Supreme
Court currently utilizes a four part designed to “test the consistency
of overruling a prior decision with the ideal of the rule of law, and
to gauge the respective costs of reaffirming and overruling a prior
case.”69 As laid out in Planned Parenthood v. Casey, the court considers; (1)
whether the rule has proven to be unworkable, (2) whether related
principles of law have evolved outside the scope of the original
ruling, (3) whether the rule has created significant reliance, and (4)
whether the facts have changed.70 While this four part test is quite
effective at considering any significant changes since the initial
ruling and the potential impact of issuing a new rule, it fails to
consider whether developments in the international community could 69 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854 (1992).70 Id. at 854-855.
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provide insight into the issue in controversy. Including such an
analysis would provide the Justices an opportunity to examine the long
term outcome of different rulings on a given issue by comparing the
approaches taken by various foreign courts. Through such a comparison
it may become possible to better avoid potentially harmful rulings by
the court, as a comparative analysis could bring to light long term
outcomes that the court would otherwise be unaware.
This is not to say that considerations of foreign courts should
replace or even be given the same weight as the four considerations
laid out in Planned Parenthood. Rather the inclusion of a comparative
analysis of non-domestic law would be more of a tool for gaining
deeper insight into the concerns underlying these four categories.
Looking abroad would allow consideration of valuable evidence that a
certain ruling may have proven unworkable in another jurisdiction.
Additionally the court may find the legal arguments utilized before a
foreign court particularly persuasive and facilitate a better reasoned
judgment by the court. There may also be some benefit in providing a
broader perspective of the evolving legal norms of the international
community. Such an expansion would assist the Justices in having a
clearer understanding of how a given legal issue has played out in a
variety of jurisdictions and would allow them to identify what, if
any, consensus exists among similarly situated states.
c. Unforeseen Consequences
The use of a comparative analysis of non-domestic law is also
useful in addressing arguments by Justices that a given ruling would
lead to some unwanted consequence. With regard to Citizens United, such
considerations are particularly relevant given the significant risk of
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harm posed by corruption in the election process. Allowing the court
to look to the broad variety of international experience regarding
election finance issues would provide a significant opportunity to
evaluate how different approaches have played out over time. From no
other source is it possible to gain a clear glimpse into the potential
implications of a given decision. Often the opinions of the Supreme
Court dedicate considerable time to hypothetical discussions of such
implications. It seems somewhat counterintuitive that while
hypothetical discussions of this nature are permitted, and even
encouraged, actually looking to concrete examples of these potential
consequences in foreign jurisdictions is far less common.
C. Challenges of the Comparative Perspective
a. Judicial Efficiency
While the consideration of foreign and international law by the
Supreme Court would certainly assist in developing a more complete and
accurate picture of certain legal dilemmas, such reliance would also
present a number of problems. In addition to issues of judicial
efficiency, it presents challenges with regard to the democratic
legitimacy of rulings, and the use of textualist or originalist
interpretive methodologies.
Looking first to the issue of judicial efficiency there are a
number of problems presented by incorporating the use of foreign and
international law citations. Perhaps most significant of these is the
question of where the Supreme Court should look when examining foreign
law. In an entirely unrestricted realm, one could easily imagine how
both sides of an issue would be able to scour the vast resource of
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foreign law to cherry pick particular examples that support their
side. On virtually any issue of legal consequence it would be possible
to find some country or court that applied the law in a manner that
supported one’s argument. In this way, inclusion of foreign law
citations could have the potential to bog down the court in even more
briefs, case law, and evidence. Given the potential for this increased
workload and the arguably limited usefulness of cases that may be
easily contradicted by examples from another jurisdiction, it becomes
somewhat questionable if the benefits from the inclusion of
international law outweigh these costs.
A brief examination of foreign campaign finance law brings this
challenge of judicial efficacy into sharp relief. Looking to the
countries of Israel, France, the United Kingdom (“UK”), Germany, and
Australia, it is readily apparent that the approaches to campaign
finance law vary significantly among these nations. Focusing
specifically on limitations to indirect corporate expenditures, there
is something of an even split. While France and Israel have blanket
bans on corporate contributions, Germany and Australia allow
corporations to make contributions largely without restriction.71 The
UK, on the other hand, allows corporate political contributions but
only for “a UK registered company, UK registered building society, UK
registered limited liability partnership, UK registered
friendly/building society, or UK based unincorporated association.”72
Even when expanding the scope of the comparison to other areas of
campaign finance law, this considerable variation between the
approaches of each country persists. For example, where the UK allows
71 Nicole Atwill, Campaign Finance: Comparative Summary, Library of Congress (May 2009) http://www.loc.gov/law/help/campaign-finance/comparative-summary.php.72 Id.
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some corporate contributions, they ban paid political advertisements
and place a ceiling on the total expenditures for campaigns.73
Australia, in contrast, places no restrictions on the source or amount
of private political donations, places only limited restrictions on
the format and presentation of political advertisements, but limit the
federal election campaigns to six weeks.74 Even among countries that
allow corporate campaign contributions, there exist dramatic
differences in their approaches to other aspects of campaign finance
law. However, while this apparent lack of consensus may appear to
demonstrate the limited usefulness of an international comparative
perspective with regard to campaign finance law, as Judges could
simply cherry pick examples that fit their preconceived notions, a
deeper analysis of these countries may nonetheless provide important
insight.
Looking to the approaches of Israel, France, the UK, Australia,
and Germany more broadly, however, one may begin to see how, although
their laws differ, they all seek to address the concerns regarding
corruption in the election process. Even among countries that allow
largely unrestricted corporate campaign contributions, their policies
are balanced by a number of other factors. As previously mentioned,
the UK utilizes a complete ban on paid political advertisement, while
capping the total expenditures of campaigns, and prohibiting
contributions from foreign corporations or individuals.75 In Germany,
far more reliance is placed on disclosure laws rather than
contribution limits, and their campaign finance laws tend to focus on
73 Nicole Atwill, Campaign Finance: United Kingdom Library of Congress (April 2009) .http://www.loc.gov/law/help/campaign-finance/uk.php.74 Lisa J. White, Campaign Finance: Australia Library of Congress (April 2009) http://www.loc.gov/law/help/campaign-finance/australia.php.75 Atwill, Campaign Finance: United Kingdom.
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the party rather than individual candidates.76 There are no limits on
the amount that corporations or individuals may contribute, and even
foreign corporations are permitted to make campaign donations.77
Although these specific regulations are rather lax, the potential
corrupting influence of corporate expenditures are addressed in other
ways. Through a well-established system of governmental funding for
elections, agreed limitations on political advertisements between the
states, and the fact that political power is dispersed through
multiple parties, Germany is able to largely insulate itself from the
corrupting influence of unlimited corporate expenditures.78 In
Australia as well, while there are no restrictions on corporate
contributions or expenditures, the potential corrupting influence of
such contributions are limited by the fact that elections are limited
to six weeks.79
Through a broad analysis of these five countries, it becomes
apparent that while their approaches to campaign finance law differ,
there is a consistent focus on limiting the risk of corruption from
campaign contributions and expenditures. Even where corporate
contributions are permitted, other limitations and conditions are
utilized to protect against undue private influence. When viewed in
the context of Citizens United, one could argue that a true comparative
analysis of campaign finance law would have brought additional
emphasis to the need for fundamental checks on the impartiality of
elections. Furthermore, even without this common emphasis, analyzing
the experiences of foreign states would provide additional evidence of
76 Edith Palmer, Campaign Finance: Germany, Library of Congress (May 2009) http://www.loc.gov/law/help/campaign-finance/germany.php.77 Id. 78 Id. 79 Atwill, Campaign Finance: Comparative Summary.
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how differing approaches play out over time. Even a brief examination
of Australia would quickly reveal considerable controversy surrounding
their extremely relaxed campaign finance laws.80 Since 1984, there have
been repeated attempts at reform, as citizens and politicians have
become increasingly concerned regarding the increasing influence of
corporate funds on elections.81
Therefore, through the appropriate application of judicial
reasoning and analysis in determining the weight and credibility of
foreign citations, problems related to judicial efficiency may be
adequately addressed. While the potential for the introduction of
contradictory foreign case law can never be completely avoided, it
would be possible for the Justices to examine such contradictions with
a critical eye. In this way little weight would be given to examples
taken from jurisdictions with dramatically different social,
political, or legal structures than our own, and case law that was
outdated or later overturned would be given similar treatment. Rather
than completely separating the court from consideration of such cases,
it would be possible to simply trust the instincts of the judges to
determine what jurisdictions are most persuasive when considering
their law and experience. In this way, countries with common law
systems, based on similar constitutional principles, with a court of
final judicial review would be given the greatest weight. Furthermore,
while individual examples may appear contradictory, as is the case in
campaign finance law, by utilizing a broad perspective it is often
80 Andrew Norton, Money-Go-Round: The Campaign Finance Reform that Never Was, http://theconversation.com/money-go-round-the-campaign-finance-reform-that-never-was-1479181 Jacqueline Ning, Democracy and the Campaigning Arms Race: The Politics Behind out Politicians, http://citizenj.edgeqld.org.au/democracy-and-the-campaigning-arms-race-the-politics-behind-our-politicians/
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possible to identify a broad global trend. That is not to say such a
perspective would eliminate the potential for a considerably greater
workload, but it would address some of the concerns regarding judicial
gridlock from contradictory foreign case law.
b. Democratic Legitimacy
In addition to the issue of judicial efficiency, the inclusion of
foreign and international law in Supreme Court decisions also
implicates concerns related to democratic representation. As Chief
Justice John Roberts discussed during his confirmation hearings, the
use of decisions by foreign judges is inherently problematic as those
judges were not appointed by a United States President nor confirmed
by a democratically elected Senate. Without the inclusion of
democratic consensus in the appointment of the judges interpreting the
law, some feel that it would be improper to import the rulings of
these judges into American law.
However, these concerns may be somewhat exaggerated if foreign
and international citations are given the proper weight. It is
important to remember that any citation to foreign or international
law would be purely on a persuasive basis as support for a legal
conclusion that was reached based on an understanding of American law.
Furthermore, reliance on these foreign citations would be limited to
constitutional issues that have been broadly litigated in other
jurisdictions. It would be for the express purpose of looking for
novel ideas, experience, and insight that could assist the judges in
the rulings. Laws of foreign nations and the rulings of their courts
cannot and should not be utilized as the sole justification for an
opinion of the Supreme Court. Such sources are not rooted in the law
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of the United States, and it would be misguided to ignore the unique
aspects of American history and culture that necessitate an
interpretation grounded in those characteristics. However, it would be
equally misguided to ignore a vast resource of case law and theory
solely because of those differences.
The Supreme Court would not be automatically extending
credibility and authority to a foreign court in a manner that would
subvert their authority. They would merely be expanding the scope of
evidence that may be considered in reaching their final conclusion. In
this way, the rulings of foreign and international courts would not
replace the authority of judges but allow them greater resources to
explore the potential implications of their decisions and find further
support for the best interpretation of American law.
Furthermore, it is important to remember that while the judges of
foreign courts are not appointed or confirmed by American politicians,
the Supreme Court Justices are, and it is their interpretation of the
law that is applied in these cases. The fact that their reasoning may
find support in international law or that potential consequences of a
given change were identified through the experience of foreign courts,
does not detract from the legitimacy of their ultimate ruling.
Instead, it can, in some ways, add additional legitimacy as it may be
seen as a more thorough and complete analysis of the resources
available to the court. This is particularly true where the relevant
legal question has been extensively litigated in foreign jurisdictions
and served as the source of considerable controversy. In such
instances, including a discussion of how foreign courts have addressed
the issue, how their approaches have evolved over time, and any long
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term consequences of a given approach would lend considerable support
to the accuracy and appropriateness of the court’s ultimate ruling.
c. Originalism and Textualism
While the issue of judicial efficiency and democratic legitimacy
may be addressed through an appropriate perspective, there remain
challenges presented by the originalist and textualist interpretive
methodology. From these two perspectives, there is arguably little
that may be contributed by an international or foreign perspective
when interpreting the constitution. Instead, proponents of these two
methodologies may claim that any reference to non-domestic law,
history, or experience is actually antithetical to the proper role of
the court. Much of this reaction seems to be based on an understanding
that there are certain unique elements to American law and
jurisprudence that should be both preserved and respected. However, in
much the same way issues of democratic legitimacy may be addressed by
attributing the proper weight to foreign and international law, so too
many questions of textualism may be addressed.
Looking to elements of Eighth Amendment jurisprudence one may
begin to see how even foreign and international experience can
elucidate the meaning of the United States Constitution from a
textualist perspective. While the amendment itself refers to “cruel
and unusual punishments,” no further explanations of those terms are
provided.82 Therefore, the Supreme Court has largely accepted that the
meaning of the phrase should be determined by prevailing social norms.
In this way, inclusion of international experience can actually
provide a more accurate picture of the terms contained in the United
States Constitution. While it would be possible to isolate oneself to 82 U.S. Const. amend. XIII.
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prevailing social norms in the United States, this would ultimately
yield a less accurate and less complete picture of what constitutes
“cruel and unusual punishment’ in popular consciousness.
Originalism, on the other hand, presents a much greater barrier.
For the originalist, any discussion of contemporary foreign law would
stand in direct contrast to their chosen interpretive methodology. The
only potential justification for inclusion of non-domestic law under
an originalist perspective would depend on demonstrating that the
founding fathers intended aspects of the constitution to be
interpreted through the lens of international law. Ultimately, for an
individual taking such a perspective, the inclusion of foreign law
would only serve as a distraction from the task of discovering the
original meaning of the founding fathers. However, despite this
philosophical rejection, the practical benefits of expanding the use
of foreign and international citations remain. Even with individual
judges retaining an originalist perspective, the increased
consideration of foreign and international law would promote rulings
that better reflect the evolving social and political norms of the
world, while limiting the potential for harmful unforeseen
consequences from a given decision.
Conclusion
In the end the case for increased reliance on foreign and
international law in the Supreme Court is one of balancing interests.
While a broader scope would certainly provide a greater opportunity to
explore potentially unforeseen consequences of judicial decisions and
allow for a more accurate and complete picture of prevailing social
and political norms, those benefits must be balanced against concerns
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of judicial efficiency, democratic legitimacy, and contrary
interpretive methodologies. However, when the use of foreign citations
are relegated to limited persuasive uses on constitutional issues that
have been heavily litigated in the international realm, the benefits
of a broader scope begins to outweigh the drawbacks.