The world court
When is it appropriate for American courts to reference foreign law?
The other day Jake posted on the Supreme Court ruling that teenagers cannot be sentenced to life in prison for non-homicide crimes. In his majority opinion, Justice Anthony Kennedy referenced the consensus in the international community against such punishments:
There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.
In other recent decisions outlawing the death penalty for juveniles and overturning laws prohibiting sodomy the court has also referenced international law. These cases raise an interesting question, what role, if any, should the opinions of foreign nations play in our constitutional interpretation?
On the one hand, it seems strange to draw a clear line between our laws and what is going on in the rest of the world. After all, the Framers drew heavily on the work of foreign thinkers such as John Locke and William Blackstone when drafting the Constitution.
In trying to understand what punishments violate the eighth amendment shouldn’t we be considering what other societies have deemed to be inhumane or inappropriate? The fact that other nations have turned their back on a particular punishment seems relevant in determining whether it’s “cruel and unusual.”
But the use of international law poses many problems as well. First, this is America’s Constitution, not the worlds, and one could object to allowing the values of other nations to influence our interpretation of it. Another danger is that appealing to the opinion of the” international community” simply provides another tool for judges to use in justifying their subjective policy preferences; as Justice Scalia puts it:
The 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. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.
There seems to be value in looking to the views of foreign courts at least as a source of “empirical data.” If we want to understand how law intersects with peoples lives evaluating the approaches and experiences of other courts provides us with useful information. But we should remain aware that the circumstances and judicial rules in other parts of the world are often very different of our own; and that looking to foreign law presents ample opportunities for manipulating and cherry picking information to support ones opinion. Judges should be cautious and objective when looking to alien law; and if they cannot do this they should not do it all.
-Luke
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- The people’s court
- Guest post: Picking the next Supreme Court Justice
- How soccer explains the world
- Too smart for the supreme court?
- Faith in the Supreme Court
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