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.