Defending the Rehnquist Court's Uses of International Law as an Interpretive Tool
Transcript of Defending the Rehnquist Court's Uses of International Law as an Interpretive Tool
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DEFENDING THE REHNQUIST COURTS USES OF INTERNATIONAL LAW
AS AN INTERPRETIVE TOOL
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. (Roper v. Simmons)
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INTRODUCTION
In recent years the Supreme Court has come under increasing attack for its
willingness to resort to international sources in its Constitutional jurisprudence.1
Especially troubling to many were the references to international law inLawrence v.
Texas, which struck down a state statute criminalizing sodomy and the rather lengthy
resort to international standards inRoper v. Simmons, which outlawed a states execution
of juvenile offenders. In the few short months since the release of the decision inRoper
the attacks by political leaders have become especially harsh, partially in response to the
perceived internationalization of the Eighth Amendment that occurred in that majority
opinion. At a conference unambiguously titled Confronting the Judicial War on Faith
Rep. Tom Coburn famously stated of activist judges that, I dont want to impeach them,
I want to impale them.2 Meanwhile other legislators have sought methods of
constraining the activism of judges by legislative means. Perhaps the clearest example
of this can be seen in a resolution recently proposed by Rep. James Feeney which states
in part that:
it is the sense of the House of Representatives that judicial interpretations
regarding the meaning of the laws of the United States should not be based inwhole or in part on judgments, laws, or pronouncements of foreign institutions
unless such foreign judgments, laws, or pronouncements are incorporated into the
legislative history of laws passed by the elected legislative branches of the United
States or otherwise inform an understanding of the original meaning of the lawsof the United States.3
1 See generally, Bork, Robert H. Coercing Virtue: The Worldwide Rule of Judges. Washington, DC: AEI
Press, 2003. Judge Borks latest work is essentially premised on the fact that law is becoming international,
and that the internationalization of law inevitably leads to judicial activism. For him and many originalists
these concepts are inextricably linked in a vicious cycle.2 Blumenthal, Max. In Contempt of Courts. The Nation. April 11, 2005. (web edition available at:
http://www.thenation.com/doc.mhtml?i=20050425&c=2&s=blumenthal).3 H. Res. 568, 108th Cong. (2004).
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While this is only a resolution and thus technically lacks the authority to bind the
courts, the very existence of such a legislative pronouncement evidences the deep divide
between many of this countrys legislators and its judges. Yet that is not the only place
the divide is found. There are certain members of the Court who substantially comply
with the demands of the proposed Feeney Resolution and are equally appalled by the
increasing role of international sources in the Courts recent decisions. These originalists
agree with the legislators who hope to reign in activist judges and believe that their
chosen methodology effectively does so.
Clearly an attempt to reign in judges who have gone outside the permissible
bounds of constitutional interpretation is legitimate, as allowing judges to act in a wholly
unrestrained manner and make decisions based solely on foreign laws that agree with
their personal values cannot serve the interests of a stable, democratic society. But
before seeking to place new constraints on judges, one must first ask whether those
judges have done anything impermissible. While opponents of the use of international
law as a tool of constitutional interpretation are quick to characterize it as an illegitimate
deviation from any valid interpretive methodology, this paper is an attempt to
demonstrate that such claims are overstated. Like any tool, international law can be
misused or applied poorly. But the fact that a tool may be difficult to apply does not
render it Constitutionally illegitimate..
The goal here is not to convince originalist judges or politicians that legal
reasoning informed by international law or consensus is right. That decision is one that
within certain bounds must be left to a judge to decide based on his or her own values.
Rather, the argument here begins with the premise that international law is one of many
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tools available to judges in their interpretation of the Constitution. Nothing in the text of
the Constitution overtly compels judges to use international law. Likewise, nothing in
the text of the Constitution compels anyone to ignore it. International law, when properly
used, may be just as legitimate an interpretive tool as any other, and the Rehnquist Court
is using it appropriately.
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THE LEGITIMACY OF INTERNATIONAL LAW AS AN INTERPRETIVE
TOOL
I. THE REHNQUIST COURTS METHODS
A. A Typology of Uses of International Law
To fully evaluate the Rehnquist Courts uses of international law in constitutional
interpretation would require an examination of hundreds of cases and thousands of
references, both direct and oblique, by judges with very different views on the matter in
cases with very different facts, outcomes, and levels of societal importance. As such a
task is beyond the scope of this paper, I will instead borrow from the work of one who
has already done this extensive survey of the Courts methods and developed a typology
of its uses of international law.
In her influential article Importing Constitutional Norms from a Wider
Civilization: Lawrence and the Rehnquist Courts Use of Foreign and International Law
in Domestic Constitutional Interpretation, Joan Larsen asserts that the Courts uses of
international law can be divided into three basic categories: the expository, the empirical,
and the substantive.4 While it is important to show here that each of these uses by the
Court is legitimate, because the first two uses of international law discussed are rather
uncontroversial I will simply set these forth fairly briefly.5 The primary disagreement
regards the third type: the substantive use of international law. It is this use of
4 Larsen, Joan L. 65 Ohio State Law Journal 1283, 1287-88 (2004). While other scholars have attempted tocreate typologies of this sort, I have chosen to structure my discussion as a response to Larsens for two
primary reasons. First, while perhaps less descriptive than others, it is more complete. Second, it is cited
approvingly by Justice Scalia in his dissent inRoper. Thus, arguing against Professor Larsens position
also frames the debate with the originalist position advanced by Scalia.5 Even Justices Scalia and Thomas, the Courts harshest critics of international interpretation, have joined in
opinions using methods Larsen terms expository and empirical. Larsen herself argues that these are
legitimate uses of international law. Thus, there is little debate necessary in these sections.
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international law that is most controversial and which divides the Court. While Professor
Larsen argues that this use of international law is wholly unjustifiable, I will attempt to
demonstrate that the Constitution does not prohibit such a use of international law, and
that in fact such a use can be quite helpful in providing a partial solutions to the
countermajoritarian difficulty.
1. The Expository Use of International Law.
International law plays an expository role when the Court uses a foreign law rule
to contrast and thereby explain a domestic constitutional rule.6 In this role international
law is used less to interpret the Constitutional provision or domestic legislation at issue
than to explain or illustrate the Courts reasoning. For example, inRaines v. Byrd7 the
Court was asked to decide whether members of Congress had standing to challenge the
Line Item Veto Act. Clearly there was no need for international law in order to decide a
case characterized by a power struggle between the legislative and executive branches of
the United States. Yet Chief Justice Rehnquist, who favors only very limited uses of
international law in interpretation, chose to reference the standing doctrines of the courts
of Europe. After providing these counterexamples to the American system, the Chief
Justice wrote: There would be nothing irrational about a system which granted standing
in these cases; some European constitutional courts operate under one or another variant
of such a regime.8 Yet in the end, the Court concludes that the European model is
obviously not the regime that has obtained under our Constitution to date. Our regime
contemplates a more restricted role for Article III courts.9
6 Larsen at 1287.7 521 U.S. 811 (1997).8Raines, 521 U.S. at 828.9Raines,521 U.S. at 828.
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Clearly, the Court could have reached its result without reference to international
law, yet the reference seems highly considered and is exceptionally well documented.
The extent of Rehnquists citations reveal that this was not merely extraneous verbage.
Still, few people would argue that the Chief Justices use of international law in this
manner is constitutionally illegitimate or unjustified. International law has clearly not
been elevated above any domestic legislation or given any controversial power. In fact, it
seems to have been given no power at all, as the international position is mentioned,
cited, and summarily disregarded.
Only in the broadest sense can this expository, comparison-seeking role use of
international law be considered interpretive at all. While the foreign law is used to
provide clarity, that clarity is not for the benefit of the decision-maker. Rather it is for
the benefit of the reader attempting to understand the decision. As Professor Larsen
states, the expository use of international reference is merely a way of explaining what
the United States law is by contrasting it with an example of what it is not.10 The
foreign law is given no authority in this role, and its power is wholly communicative
rather than legal in nature. As it causes no legally relevant changes, it requires no legal
justification. If it is helpful to the Chief Justice in communicating the precise meaning of
his opinion, it is appropriate and uncontroversial.
2. The Empirical Use of International Law
The Court utilizes international law in the method described by Prof. Larsens
typology as empirical when it essentially scours the globe for evidence that is unavailable
domestically. Perhaps the best example of this international evidence seeking is in the
10 Larsen at 1289.
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case ofWashington v. Glucksberg.11 Here the Court was forced to determine whether a
states ban on physician assisted suicide violated the demands of due process. After
determining as a matter of law that rational basis review was proper, the Court then had
to apply this standard by comparing the available evidence to the Courts standard of
rationality and determine whether the ban could survive. Yet, this case involved the first
state to ban physician assisted suicide. While there was social science evidence and
expert testimony on the issue, there was no similar domestic policy to provide concrete
evidence of the effects of such a law. Therefore, the Court turned to international sources
stating: Respondents' proposals, as it turns out, sound much like the guidelines now in
place in the Netherlands, the only place where experience with physician-assisted suicide
and euthanasia has yielded empirical evidence about how such regulations might affect
actual practice.12 After listing a litany of problems resulting from governmental
regulation of voluntary euthanasia, the Court concluded that the banning of this practice,
as opposed to merely imposing regulations, was reasonable in light of the negative
consequences that arose in the Netherlands.
Here again, the Court has voluntarily used international law to reach an
interpretation of the Constitution, but the way it used international law was not highly
criticized. In fact, the Courts opinion in Glucksbergwas joined by both Justice Scalia
and Justice Thomas, whose originalist methodologies tend to favor strict limitations on
the use of international sources. Perhaps this is because, like the expository use of
international law, this empirical method of borrowing from foreign sources does not
borrow law. Rather it borrows evidence in the form of real-world outcomes of legislative
11 521 U.S. 702 (1997).12Glucksberg, 521 U.S. at 785.
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enactments attempted in other countries. The Court in Glucksbergwas using
international experience not to define the height of the hurdle placed by the Constitution,
but to determine whether the state had cleared it. This indirect use of international law
may be acceptable to Court because it is not constitutional interpretation in the purest
sense of defining the meaning of the text. Rather, it is finding facts and applying them to
the already interpreted standard found in the Constitution. The Justices are not using
international law to answer the question: What does due process mean? Rather, they
have already determined what due process requires in this situation and are merely using
international law to determine whether those requirements are met.
While the evidence seeking role of international law may be more troubling than
the comparison seeking role because the Court is actually attempting to answer a question
rather than merely explain itself, the practice is fairly easily defended. The Court is not
looking to international law to determine what the Constitution says. It would be an
overstatement of the holding of Glucksberg to claim that the Court has said that due to
the results of the regulatory experiments in the Netherlands, the Due Process Clause of
the Fourteenth Amendment does not protect citizens from a government ban of voluntary
euthanasia. Rather, the holding was case-specific and, more importantly, evidence
specific. A more proper reading would claim that the Due Process clause requires that
the government act reasonably in legislating toward a legitimate governmental interest.
In this case, the state asserted that banning rather than regulating voluntary euthanasia
was reasonable because it didnt want to create certain ancillary problems via regulation.
Thus, the Court looked to the Netherlands to determine whether the states fears of severe
ancillary problems were realistic fears such that avoiding them was a legitimate concern.
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The court found that in this case, given the similarities to the situation in the Netherlands,
a concern for similar outcomes was a reasonable concern and an interest in acting a
manner which avoided those outcomes was a legitimate state interest. In short, all of the
reasoning involving the experience of the Netherlands took place at a level below the
question of the meaning of the textual phrase Due Process. While perhaps giving more
authority to international sources than the expository use, the empirical use of such
sources is not especially troubling even to originalists, as the Court is borrowing not law
or principles, but factual evidence of outcomes.
3. Substantive
While there is general agreement that both the expository and empirical uses of
international law by the Supreme Court are justified, there is no such agreement
regarding the substantive use. It is this method which has led to the controversy within
the Court and involving the legislature. The first two uses of international sources are not
used directly to influence the interpretation of the Constitution. The expository merely
looks to foreign laws to play a communicative role similar to hypothetical examples in a
lecture. The empirical looks for evidence of outcomes that are unlikely to be affected by
nationality or location. The substantive use of international law is far more direct and
powerful. It uses international sources directly in order to determine what an ambiguous
provision of the Constitution should mean.
Before attempting to provide justification for this use of international law as a tool
of constitutional interpretation, it may be helpful to first provide the clearest example
currently available of this use by the Court. This is found in theRoper v. Simmons.13
13 125 S. Ct. 1183 (2005). Professor Larsens article was written prior to the Courts decision inRoper.
While her discussion of the substantive use of international law focuses onLawrence v. Texas, her critiques
of the methodology apply equally, if not more strongly, to the majority opinion inRoper.
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Here the Court was asked to determine whether the Eighth Amendments proscription of
cruel and unusual punishment prohibited the execution of a person convicted of a murder
he committed while under the age of eighteen. Initially, the Court set forth the applicable
legal standard, stating that the Constitution must be interpreted according to its text, by
considering history, tradition, and precedent, and with due regard for its purpose and
function in the constitutional design. To implement this framework this Court has
established the propriety and affirmed the necessity of referring to the evolving
standards of decency that mark the progress of a maturing society to determine which
punishments are so disproportionate as to be cruel and unusual.
14
To determine the current standard of decency the Court looked first to the
domestic practice of the states, noting that the national trend involved movement away
from the execution of juveniles. The Court then went on to engage in a lengthy and
searching examination of international law and study of the practices of foreign nations
on the topic. Unlike many prior cases in which international law had been obliquely
referenced or merely footnoted, an entire section of Justice Kennedys majority opinion
in Roper was devoted to the international element of the evolving standards of decency.
In clearly the strongest and most direct use of international law and consensus by the
Supreme Court, Justice Kennedy begins Section IV of the opinion by outlining precedent
showing the propriety of looking to other nations to bolster constitutional principles,
especially when interpreting the Eighth Amendment.15 He then goes on to cite both
respected documentary international law and the ongoing practice of nations to
demonstrate a high level of agreement among nations that the execution of juveniles is an
14 Roper, 125 S. Ct. at 1184. (quoting Trop v. Dulles, 356 U.S. 86, 100-101 (1958).15Roper, 125 S. Ct. at 1198.
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unacceptable form of governmental behavior.16
II. DEFINING AND DEFENDING THE SUBSTANTIVE USE OF
INTERNATIONAL LAW
A. The Importance of Consensus
In attempting to unpack and evaluate the validity of the majoritys methodology
inRoper, it is first important to note the vital role played by consensus. Many critics
have asserted that international law is illegitimate as an interpretive principle because it
makes the law of another nation binding on Americans without their consent.17 This is
simply not what the majority has done, however. Rather, the Court has looked for a
consensus of principle among the nations of the world.
The difference here is extremely important. While it would be illegitimate for any
judge to impose upon Americans a law that has not been passed via the appropriate,
constitutionally mandated legislative process, it is not impermissible for a judge to resort
to principles in attempting to interpret the Constitution. In fact, it is inescapable.18 Even
originalists who assert that their methodology precludes substantive principles from
affecting their decisions cannot escape the fact that their very choice of methodology
involves a resort to values.
B. A World of Competing Principles
Thus the relevant question becomes: How can one determine which values or
principles may be justifiably used in constitutional interpretation? Academic literature is
16Roper, 125 S. Ct. at 119917
See Bork at 135-139, andRoper, 125 S. Ct. at 1225 (Scalia, dissenting.) (Though the views of our own
citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-
called international community take center stage.)18 See Dworkin, Ronald. A Matter of Principle. (ch. 2), Cambridge, MA: Harvard Univ. Press, 1985 at 69.
(The flight from substance must end in substance.); (the Court should made decisions of principle
rather than policy).
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filled with commentators arguing for and against various foundational interpretive
principles, but no consensus has emerged. Originalists assert that judges should be
constrained by the original intentions of the founders, though they define original
intentions and founders in different manners that would lead to different results and
disagree over the role of tradition.19 John Hart Ely argues that judges should be limited to
interpreting the Constitution as a procedural document designed to facilitate the
functioning of democracy.20 Ronald Dworkin rejects both of these attempts to find a
value-neutral principle, asserting that there is no acceptable method of constraining the
substantive values and principles of judges and that to some extent the American system
of judicial review must allow, to some extent, for the rule of philosopher-judges. 21
In large part Dworkins criticism of the attempt to escape personal values is apt.
There seems to be no way to both embrace a system in which human judges with
particular beliefs and experiences are required to be the final arbiters of the meaning of
the Constitution in accordance with the theory of judicial review set forth in Marbury v.
Madison and to strip substantive values from that system. This is the underlying cause of
the countermajoritarian difficulty famously discussed by Alexander Bickel.22 The
American system of jurisprudence attempts to simultaneously allow majoritarian rule via
the legislative process and allow unelected judges to strike down the results of that
majoritarian process. To the extent that a judges reasons for striking down a law are
19 Bork, Robert H. The Tempting of America: The Political Seduction of the Law. (ch. 6). New York:
Macmillan Free Press, 1990 at 153; Farber, Daniel A. and Suzanna Sherry. Desperately Seeking Certainty:
The Misguided Quest for Constitutional Foundations. Chicago, IL: University of Chicago Press, 2002 at
10-12, 29.20
See generally Ely, John Hart. Democracy and Distruct: A Theory of Judicial Review. Cambridge, MA:
Harvard Univ. Press, 1980.21 Dworkin at 34, 71.22 Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2d
Ed. (ch. 1) New Haven, CT: Yale Univ. Press, 1986.
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based upon his or her subjective, substantive beliefs, there is a legitimate problem. This
is equally true whether those beliefs are imposed directly or through a methodology such
as originalism which is the product of the judges substantive beliefs.
C. A Procedural Mechanism for Finding Principles
The majority of the debate over the choice of the appropriate judicial decisional
principle has focused on the ability of the particular principle to solve the
countermajoritarian dilemma. It has been outcome based, with each proponent asserting
that his or her principle is more successful at constraining judicial caprice.
Unfortunately, this provides no solution. Because the countermajoritarian difficulty is
such a multi-faceted problem in which the reduction of difficulty in one area leads to a
corresponding increase in difficulty in another, there is no way of determining an
objectively best result. Subjective values are not only incorporated into the principles
debated, but also into the standards of evaluation. Thus no resolution can be reached in
this manner. Because there is no objective benchmark, each proponent of his or her
subjectively favored principle comes to believe that that principle leads to the best
solution.
Given these extremely complicated problems of subjectivity, it is easy to see why
originalists attempt to find an objective benchmark. If nothing else, it provides
simplicity. The problem with originalism is not its attempt to find objectivity, but the
objective benchmark it has chosen. Originalists have chosen to bind themselves to an
understanding of the text held by members of the founding generation. While this
anachronistically situated core principle may be objective, its selection by modern-day
jurists is based on subjective values, and in operation those subjective values will still
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determine the outcomes of cases. Because these initial values are still tied to outcomes
this chronological benchmark, while theoretically objective, renders originalism a mere
veil over judicial values rather than a meaningful constraint.
The originalists attempts to find an objective standard is a step in the right
direction, however. They have simply looked to the wrong standard. If judges could bind
themselves to a procedure that was capable of selecting the required core principle in a
given case regardless of that judges own values, the problem might be avoided. The
choice to bind oneself to the procedure might be just as value-laden as the originalists
decision to be bound to the originalist methodology, but because the judge bound to the
procedure could not know what principle would be its outcome, the chain of value-laden
decision-making would be broken by the operation of the procedure.23
International consensus could provide this benchmark procedure to be used to
locate principles separated from judicial values. If judges bound to uphold the
Constitution also chose to account for international consensus in their judgments, they
would be constrained by a principle separated from their own substantive beliefs.
Admittedly there may be times when an international consensus does not exist or cannot
be determined, but when one does it provides an external principle for decision-making.
Because this principle would have arisen via the consensus of the largest conceivable
majority, it would be procedurally justified via democratic principles. Thus a judge
operating according to a principle found in this manner would be imposing not his own
countermajoritarian values, but the views of the largest possible democratic majority.
D. International Consensus and the Countermajoritarian Difficulty
23 The rationale here is similar to that of the intervening cause in tort law.
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As previously stated, there is no right answer to the countermajoritarian
difficulty. But as it is one of the primary challenges to be addressed by any tool designed
to constrain the judicial imposition of values, it is important to honestly evaluate ability
of international consensus-derived principles to make a meaningful contribution.
The first issue that comes to mind when attempting to address the
countermajoritarian difficulty is the simple numerical problem. A group of nine judges
cannot, consistent with traditional democratic principles, override the will of the entire
nation. It is this numerical problem that international consensus addresses most directly.
When the principles used in constitutional interpretation are ratified by the international
majority, they can no longer sensibly be termed countermajoritarian. If the numerical
move from millions to nine is the problem, then the opposite move from nine to billions
is a solution. By resorting to the principles of the largest available majority, judges have
democratic, majoritarian justification for utilizing those values to interpret the
Constitution.
Of course, as previously recognized, the countermajoritarian difficulty far more
complex than a simple equation and cannot be completely solved by numerical means.
This solution does admittedly create new difficulties, just like every other proposed
solution. In effect, it adds a third element to the two-piece problem initially described by
Bickel. Instead of simply a majoritian legislative enactment and a countermajoritarian
judge, this system incorporates a second, larger majority. While this larger majority is
perfectly consistent with purely theoretical democratic values, critics will charge that
because this additional group was unaccounted for in the Constitution, it is at best
irrelevant and at worst illegitimate. However these critics word their objectionwhether
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they reference the social contract function of the Constitution, sovereignty of the
domestic majority, or deviation from the original functionthe objection is
fundamentally the same: the addition of a larger majority is not permissible under the
Constitution.
This objection cannot be ignored, but neither can the advantage of resolving the
numerical dilemma. Again, the purpose here is not to convince originalists that they
should begin seeking principles via international consensus. Rather, it is to show that
every methodology involves value-laden choices and has both advantages and
disadvantages when applied to the countermajoritarian problem. An originalist could not,
consistent with his own values, resort to the use of international consensus. His concern
for the original social contract function of the Constitution overrides his commitment to
purely democratic ideals. It is just that commitment to the original function that earns
him the label originalist. But another judge could reasonably believe that the
Constitutions demand for functional democratic, majoritarian values as a principle
outweighs the interest in maintaining the form of the original social contract. That judge
would be just as justified in choosing international consensus as an interpretive tool as the
originalist is in choosing his methodology.
Originalists will object to internationalism. The values that lead one to choose
originalism are in conflict with those that lead one to choose internationalism. The
fundamental difference is that binding oneself to an originalist methodology binds one
from beginning to end to a substantive philosophy in a way that an internationalists
binding oneself to the procedure of principle-seeking via international consensus does
not. Thus there will be times when the two sides will agree on the merits of a given case.
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There is absolutely nothing that prevents international consensus from affirming a
principle that is substantively identical to the originalist position. When this occurs a
faithful internationalist judge should be compelled to follow that substantively originalist
position even though it likely differs from his own. Legitimacy for the internationalist
not found by attempting to determine what is right. Rather, a principle is legitimate
because it is chosen by the largest available majority. Because everyone is bound by his
or her own values and principles, this is the closest thing to an objective interpretive
principle that is available.
E. RevisitingRoper
Initially,Roperwas presented to exemplify a method using of international law
that Professor Larsen deemed unjustifiable. I have argued that in fact this method is
justifiable, and I would now like to revisitRoperto show how the majority opinion in
Roperto demonstrate this concretely.
Justice Kennedy and theRopermajority did not impose their own values on the
American people. Nor did they allow foreigners to dictate the meaning of the
constitution. Rather, in attempting to fulfill their duty to interpret the Constitution, they
first had to determine what principles should be invoked. To do this they looked not to
their own personal values, but to the procedurally justified values of national and
international consensus. Upon finding that there was agreement between international
and domestic consensus, the Court could legitimately strike down the states policy of
juvenile execution. The power of the consensus of the larger majority, here in the form
of both the national and international majority, to strike down a contrary policy of a
smaller majority (here, the majority of people within a single state) was vindicated.24
24
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F. The Rehnquist Courts Uses of International Law Have Been Legitimate.
Despite the objections of numerous politicians offended by the use of
international law in constitutional decision-making, none of the uses of international law
undertaken by the Rehnquist Court can be shown to be illegitimate. The expository use
of international law gives it no more power than a hypothetical situation used for
illustrative purposes, and the evidence seeking role of international law uses international
facts more than international law, and thus draws no strong objections.
The principle seeking role of international law is more troubling to many, as it
seems to some like an attempt to steal sovereignty from Americans and allow foreigners
to dictate the laws of the United States. While there may be some uses of international
law that could do this, the Rehnquist Court has given no such power to international
law.25 Rather, the Court has engaged in a manner of interpretation that allows, when the
wording of a constitutional provision is unclear, for the reference to international
consensus in the attempt to ensure that fundamental principle used in interpretation of the
text is not in conflict with the values expressed by the world at large. Because it
expresses the wishes of the largest possible majority, international consensus is the most
legitimate means of attempting to find a root principle for those judges whose
methodology requires one.
25 Thus far, the Court has only used international consensus in a confirmatory role. Only wheninternational consensus has agreed with national consensus has it been invoked to justify a result. Whether
there are circumstances in which it could do otherwise is an open question, though in her dissent inRoper
Justice OConnor concludes that it could not. In her view there was a solid international consensus against
juvenile execution, but because she disagreed with the majoritys finding that there was a national
consensus, she dissented. Thus, for her the lack of a national consensus could not be overcome by solid
international consensus. In her view the confirmatory role of international law represents its outer limit.
See Roper, 125 S. Ct at 1215. (OConnor dissenting)
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In any event the outspoken critics who have facetiously suggested impalings,
impeachments, and originalist resolutions have vastly overstated their case. While the
members of the Rehnquist Court may have substantial disagreements over the legitimate
uses of international law, the Court as a whole has not engaged in a massive movement
toward internationalization as critics like to suggest. At this point the Court has limited
its use of international modes of interpretation to the methods shown in Professor
Larsens typology. Whatever ones personal opinion of the legitimacy of international
law, it is difficult to understand how a rational person could invoke impaling over
granting international law the authority to act as a hypothetical, a piece of factual
evidence, or a confirmation of the views of a domestic majority.
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III. INSTRUCTIONS FOR THE PRUDENT USE OF INTERNATIONAL LAW AS
A PRINCIPLE SEEKING TOOL
More subtle than the attack on the legitimacy of international law as an
interpretive tool has been an attack on the ability of the courts to utilize such a tool
properly in practice. There is a substantial fear that international law will be invoked in a
manipulative orad hoc manner such that international law will be prominent when it
supports the judges decision, but either manipulated or ignored when it does not.
These methodological concerns are valid, as even a legitimate tool can be used
dangerously to subvert its purpose. The haphazard, selective, or poorly executed use of
international law accomplishes nothing more than muddying the constitutional waters and
undermining confidence in judicial decision-making, while reifying the belief that all
resort to international consensus in interpretation is illegitimate.26 It is therefore vital that
the use of international law be properly constrained such that it may only be used
legitimately. Prudential rules are necessary to ensure that this tool is not abused and
undermined. The law requires some measure of consistency and clarity to remain fairly
applied. Thus, to combat the haphazard, selective, and poorly researched use of
international law in the courts, some instructions for the use of international consensus
are needed.
A. The Largest Reasonable Majority Principle
The justification of the principle seeking use of international law as stems directly
from its resort to the largest majority. If this condition is not met in application, the
26 See especially Alford, Roger P. Misusing International Sources to Interpret the Constitution. 98
American Journal of International Law 57, (January 2004).
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justification fails. Of course, there is no way to poll every person or every country on
every topic of interest, but it is possible to gather evidence from as many countries as
possible. While in the comparison seeking or evidence seeking roles it may be
permissible to look to only a single countrys practice, this is not true in the principle
seeking. Using the largest majority provides a procedural method of choosing among
substantive principles only if it is done fairly. If judges manipulate the tool by
ideological gerrymandering it merely acts as a veil to hide the countermajoritarian
judicial will.
There are numerous sources of international law that could be used to find this
broad consensus, and there will inevitably be disagreements in each case as to the precise
definition of the largest reasonable majority. Yet while there is no absolute hierarchy,
Justice Kennedys opinion inRopercould provide an illustrative example of the proper
scope of reference to international law. In that case Kennedy refers to both documentary
international law and widespread practice. He first refers to the International Covenant
on Civil and Political Rights, which is one of the most widely accepted documents in the
field of international law.27 He then looks to the practice of all nations and specifically
enumerates those which have policies contradicting the majority principle.
It is possible to extract several best-practices for the proper use of international
law from the majority opinion inRoper. First, international documents are important.
Those documents which have been affirmed in principle by the vast majority of nations
should be looked to first as examples of majority-approved decisional principles.
Examples of such documents would include the Charter of the United Nations, the
27 According to the United Nations, the ICCPR currently has 67 signatories and 154 parties. Text and
information available at: http://www.ohchr.org/english/countries/ratification/4.htm.
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Universal Declaration on Human Rights, and the aforementioned International Covenant
on Civil and Political Rights. The criterion upon which resort to these documents is
based is not their content. Rather, it is their widespread acceptance by the vast majority
of nations.
As a second form of evidence of international consensus the court should again
follow the lead of theRopermajority by looking to the practices of all nations. While
there is a tendency to prefer to look to civilized nations nations that share a more
common heritage with the United States, such a limitation undermines the credibility of
the result. By eliminating some countries in a value-laden manner, a judge effectively
destroys the procedural legitimacy that comes from resort the international majority. In
Roperthe majority opinion explains how it goes about finding the international consensus
and explicitly identifies those countries which do not share the majority view. Thus there
is substantial transparency in the principle seeking, and the court avoids to the greatest
extent possible the charge of ideological gerrymandering.
B. The Two-Way Street Principle
Much of the concern currently expressed regarding the use of international
consensus comes from the political right. Much of the criticism involves valid critiques
on methodology by those who prefer originalism, but because the cases in which
international law has been cited most strongly have vindicated traditionally liberal causes,
there is also great concern that international law will be used as a means of judicially
liberalizing American culture.28
28 See Bork, Coercing Virtue at 1-11.
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International law cannot be used for this end if it is to be legitimate. In order for
international consensus to be meaningful and helpful judges must attempt to use it even-
handedly. While it is likely that given the current political climate in the United States,
judges associated with the political left will be more receptive to the use of international
law, that does not mean that it is a leftist tool. To be legitimate it must be a procedural
tool driven by evidence rather than ideology. The use of international law cannot
maintain its legitimacy if it becomes a one-way street by which a particular value is
systemically read into the Constitution. International law is to be a constraint on judges,
not a new tool they may use to further their substantive beliefs. International consensus
will not always provide the answer a judge hopes to find. If this is the case, the judge
cannot merely act as if it did. An internationalist judge should either defer to the
international consensus or provide a compelling reason for departure from it. In other
cases, there will simply be no consensus. While the temptation may be strong to
overstate the case for ones favored interpretation in such instances, this too would be
illegitimate. Judges and lawyers must be held to standards of honesty and substantial
transparency when invoking the international majority.
C. Prudential Categorical Exemptions
There are some parts of the Constitution that are not amenable to interpretation
with regard to international consensus. Some provisions are simply too intrinsically
American to be interpreted in such a manner. The first three Articles of the Constitution,
for example, should not be interpreted in light of international consensus because they
deal entirely with the structure of the domestic government. To allow such provisions to
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CONCLUSION
As used by the Rehnquist Court, international law is both legitimate both in
theory and in application. It is merely one of many tools available to judges that is
neither compelled nor prohibited by the Constitution. Because of the current political
climate in the United States, certain politicians have chosen to mischaracterize the nature
of the tool and to overstate its power in an attempt to eliminate international
considerations from constitutional decision-making. Such legislative interventions into
the authority of the judiciary are ill-advised. While constraining the power of individual
judges to impose their wills on society may be a good thing, allowing legislative
intervention into the internal workings of the Court or the mind of a judge is not.
As this paper has demonstrated, the minor trend toward internationalization by the
Rehnquist Court cannot reasonably be characterized as judicial tyranny. If anything truly
surprised me in developing this paper it was the relative impotence of international means
of interpretation by the Rehnquist Court. Clearly the sky, or in this case the Constitution,
is not falling. International law is a legitimate tool being applied carefully by the
Supreme Court. While my inquiry did no go to the application of the tool by the lower
federal courts, I am convinced that if international law continues to be used by the
Supreme Court, lower courts will be quite capable of discerning instructions and best-
practices and applying them carefully.
No tool can convert judging to arithmetic. While we may not have to accept the
Dworkinian philosopher-judge, we must allow judges the freedom to do their jobs in
accordance with their own principles so long as they are capable of arguing that those
principles chosen are consistent with their duty to interpret the Constitution.
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International law is one legitimate method of deriving such principles, and as such it
should not be excluded from the judicial toolkit.
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