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March 21, 2005

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Jodi Bart, UT Law Communications Coordinator, (512) 471-7330.

Is There Room for the World in Our Courts?

By Sarah H. Cleveland
Published Sunday, March 20, 2005, in The Washington Post Outlook section.
Reprinted with the author's permission.

In striking down the death penalty for juveniles earlier this month, the Supreme Court turned a decisive page in a debate that has raged for years over the status of international law in interpreting the Constitution. Since 1988, the justices have sharply disputed whether to consider international norms in defining such concepts as "cruel and unusual punishments" and due process. In Roper v. Simmons, however, the 5-4 majority resoundingly supported the relevance of international law. And Justice Sandra Day O'Connor, in dissent, nevertheless agreed that "the existence of an international consensus . . . can serve to confirm the reasonableness of a consonant and genuine American consensus."

What a contrast to the prevailing isolationism of the Bush administration, which recently withdrew from the International Court of Justice's jurisdiction in response to the ICJ's ruling that the United States had violated the consular rights of Mexican nationals on death row. Together, these events bring to the fore a dispute that is enduringly provocative, because it pits those who stress the uniqueness of the American constitutional system against those who emphasize what America shares with the global community. It is a debate that ultimately raises the question of whether America's strength lies in its historical independence from the whims of global society or from its leadership role therein.

Roper is the most recent battleground on which Justices Antonin Scalia and Stephen Breyer have acted as spokesmen for the opposing camps. Scalia has asserted that "modern foreign legal materials can never be relevant to an interpretation of . . . the meaning of the U.S. Constitution." He is supported by Justice Clarence Thomas, who has protested the court's apparent willingness to "impose foreign moods, fads, or fashions on Americans." Both men emphasize the singularity (and superiority) of the American system.

Breyer and at least five other members of the court, on the other hand, argue that international norms should inform our constitutional analysis in a world increasingly united by globalization, democratization and the spread of universal human rights.

The two camps have clashed over such political hot-button issues in America's culture wars as the death penalty, abortion and gay rights. But often overlooked in the debate is the fact that today's justices are not the first to wrestle with the need to find the appropriate balance between the two approaches. The question was evident almost two centuries ago in a case arising from the War of 1812. Chief Justice John Marshall, reflecting the Breyer view, wrote that "In expounding [the] Constitution, a construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it does not possess elsewhere." Marshall presumed that the Constitution would incorporate international norms. Indeed, since the nation's founding, the court has often looked to international rules in a broad range of contexts -- to help define state powers within our federal system and to construe the commerce clause, the government's power over immigrants and the meaning of involuntary servitude and due process, to name a few.

Even the current administration, while prominently flouting many of our international obligations, has sought sweeping powers from international rules when that proves convenient. Just last term, the Justice Department argued to the court that the president's authority to detain U.S.-born alleged Taliban fighter Yaser Esam Hamdi derived from the international laws of war. The court divided over the argument. Four justices looked to international law both as supporting the president's power to detain and as imposing limits on that power. Justices David Souter and Ruth Bader Ginsburg in turn objected to the apparent contradiction in the administration's claim of powers recognized by the laws of war while failing to provide detainees the protections afforded by those same rules.

The ongoing disagreement over our relationship to international law reflects fundamentally different attitudes toward America's place in the international system. Scalia, a stark proponent of American constitutional exceptionalism, looks back to the country's beginnings in urging that "if there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are."

He is doubtless correct that certain aspects of U.S. constitutional design deliberately rejected the practices of continental Europe. These include our liberal free speech protections and the right to jury trial in civil and criminal cases, which was unknown outside of Great Britain at the founding. Both now separate the United States even from British practice.

It is incorrect, however, to suggest that our entire constitutional system sets us apart from the international community. The founders also worked from the assumption, set forth in the Declaration of Independence, that humanity shares a common set of inalienable rights.

The drafters of the Constitution were well versed in international law, and they intended the United States to take its place among the community of nations by adhering to international rules. Thomas Jefferson considered the law of nations "an integral part . . . of the laws of the land," and John Jay, one of the authors of the Federalist Papers and the first chief justice of the United States, proclaimed that "the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations." Indeed, compliance with international law was critical to prevent the fledgling nation from offending powerful foreign states.

Therefore, it would be surprising if the founders expected the government's powers to be construed in isolation from international rules. Similarly, the general concepts of individual rights such as "liberty" and "cruel and unusual punishments" that the drafters incorporated into the Constitution reasonably invoke the fundamental values of the international community. In short, while some constitutional traditions may be unique to the American experience, other aspects of our heritage invite consideration of international rules.

This dialogue between international and constitutional values has been largely lost to modern jurisprudence, as the use of international law has become a political football in our charged debates over the death penalty and gay rights.

Each side of the Scalia/Breyer debate today contends that its approach does the most to protect fundamental liberties. In reality, however, international law does not point in any particular direction in promoting individual rights. Take abortion as an example: International law, in the form of treaties and customary international norms, is essentially silent on the subject. The practices of foreign nations, on the other hand, run the gamut from absolute prohibition to liberal abortion laws. And while Scalia notes that most countries around the world impose greater restrictions on abortion than the United States, most advanced industrial democracies broadly protect abortion rights.

Abortion, in other words, stands in stark contrast to the juvenile death penalty: The United States was the only country in the world that continued to officially sanction the penalty, and the practice placed the United States in the lonely company of such notorious human rights violators as Yemen and Iran.

Scalia frequently criticizes the court for selectively citing foreign sources that support its views while ignoring practices abroad that contradict our constitutional norms. And history shows that international law can be abused. In the 1857 Dred Scott case, the chief justice of that period, Roger B. Taney, infamously invoked foreign practices to conclude that the framers did not intend to bestow citizenship on African descendants. But where international rules would have supported freeing Dred Scott from slavery, Taney rejected their relevance. The fact that international sources -- like all interpretive sources -- may be abused, however, is an argument that they should be used with integrity, not that they should not be used at all.

Over a century ago, the court observed that "The Constitution of the United States was . . . . made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown."

Those who seek to differentiate the American system from the international community fail to recognize that the United States is a participant in the making of international law, from international trade rules to international humanitarian law and human rights.

The use of international law does not mean we should follow it blindly. But willfully ignoring those rules both brings the United States into conflict with other nations, as with the juvenile death penalty, and hampers our ability to invoke international rules from which we wish to benefit. International law has been a part of our law from the beginning, and its use in constitutional analysis is fully part of the American tradition.


Sarah Cleveland teaches the constitutional law of U.S. foreign relations at The University of Texas School of Law. She is currently researching the Supreme Court's historical use of international law in constitutional interpretation.

Related Link:
Professor Sarah Cleveland's Web Page: http://www.utexas.edu/law/faculty/shc0583/