ONE OF the most marked and distinct trends that has emerged in constitutional law in recent years has been the increased citation of international law in interpreting the U.S. Constitution. Citation of international law in the sense the Court uses it today, as evidence of an "international consensus," has been known on the Court since Justice Arthur Goldberg's 1963 memorandum suggesting that the death penalty should be declared unconstitutional in light of international trends against capital punishment.
However, the Court's recent decision in Roper v. Simmons, which declared juvenile executions unconstitutional,relies on international sources to a nearly unprecedented scale. Yet we should be critical of this trend in Supreme Court decision-making, as it threatens to undermine respect for the Supreme Court, undermine the right of the American people to control their own legislative destiny, and undermine the integrity of the constitution itself.
At the outset it should be noted that the issue here is not, as some proponents of citing international law would have it, whether the Supreme Court can ever note or take account of international law in its decision-making. In justifying its decisions, the Supreme Court cannot simply impose its own will, but must cite binding legal authority in justifying its decisions. The issue, then, is whether international law is this type of authority-binding legal precedent that may be used in justifying a decision. In the Supreme Court's decision in 2002's Atkins v. Virginia, prohibiting execution of the mentally retarded, the court took note of international standards only in a sentence in a footnote.
Clearly, this reference, tucked away obscurely as it was, was not the basis for the court's decision in that case, but was purely dicta. However, in Roper, international law commanded its very own section, as "the overwhelming weight of international opinion against the juvenile death penalty" was noted and analyzed at length. Though the court added an ambiguous disclaimer that international law was not "controlling" in deciding the outcome of Roper, it nonetheless was noted as "significant confirmation" for the Court's conclusions. Nor is the issue whether international law may be used, as Justice Stephen Breyer has suggested, as "cast[ing] an empirical light on the consequences of different solutions to a common legal problem." Though it is arguable whether the court has ever taken this type of consequentialist line in its constitutional decisions, international law in this sense would not in itself be invoked as justifying a decision on its own force, but rather on the force of the empirical conclusions that may be drawn from experience with such a law.
In the sense of binding legal authority, then, the use of international law proves particularly pernicious. The most obvious reason is that it seems to understate, and indeed, ignore the unique character of the American legal system, constitution and self-image. It is often forgotten just how unique American law truly is. As Justice Antonin Scalia pointed out at length in his dissent in Roper, almost all foreign nations have closer church-state ties, routinely use illegally seized evidence in court and curb abortion before viability, all practices constitutionally disallowed in the U.S. The United States may have borrowed many legal practices from England, but America was founded as a nation whose political values stood in contrast with those of the Old World. Having a written constitution was one of those values, and it is simply not relevant to interpreting that document whether England, or any other nation, has adopted a certain legal practice.
Moreover, invocation of international law seems to deny to the American people their right to make distinctive laws and to reject international norms. For example, the United States was one of two nations which refused to ratify the U.N. Convention on the Rights of the Child specifically because of the issue of the juvenile death penalty. This was a deliberate decision of the political branches of the United States based on its approval of the juvenile death penalty. It seems the Americans are losing their authority to make such decisions at the point that the Supreme Court disallows political decisions which cut against international opinion. To force the decisions of other countries down Americans' throats seems to cut against basic principles of self-government.
But most disturbing are the consequences for the Court itself. Many Americans migrated to the U.S. out of hatred and dislike of foreign legal practices, and recoil at the idea that such practices and opinions may be forced on the U.S. Whatever the virtues of cosmopolitanism as an abstract political theory, it simply cannot work in the U.S. because of widespread belief in American exceptionalism. The greatest consequence of citation of international law may be, in the end, a diminution of respect for the Supreme Court itself because of public outcry.
Noah Peters' column appears on Mondays in the Cavalier Daily. He can be reached at npeters@cavalierdaily.com
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