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Misusing International Sources to Interpret the Constitution

Published online by Cambridge University Press:  27 February 2017

Roger P. Alford
Roger P. Alford*
Affiliation:
Pepperdine University School of Law
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Extract

In the keynote address to the 2003 annual meeting of the American Society of International Law, Justice Stephen Breyer declared that “comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights.” Justice Breyer concluded that nothing could be “more exciting for an academic, practitioner, or judge than the global legal enterprise that is now upon us.” In a room filled with international lawyers and academics, he received a home court standing ovation.

Type
Agora: The United States Constitution And International Law
Information
American Journal of International Law , Volume 98 , Issue 1 , January 2004 , pp. 57 - 69
Copyright
Copyright © American Society of International Law 2004 

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Footnotes

*

Earlier versions of these comments were presented at the 2002 annual conference of the American Society of International Law, Section on International Law in Domestic Courts, Fordham University Law School; and the 2003 International Law Society-West symposium at Loyola of Los Angeles Law School. I gratefully acknowledge the comments of the participants at those conferences, as well as the research assistance of David Dae Hoon Kim, Georgetown University Law Center.

References

1 Breyer, Stephen, Keynote Address, 97 ASIL Proc, 265, 265 (2003)Google Scholar (quoting Ruth Bader, Ginsburg & Deborah Jones, Merritt, Affirmative Action: An International Human Rights Dialogue, Fifty-first Cardozo Memorial Lecture (Feb. 11, 1999), in 21 Cardozo L. Rev. 253, 282 (1999)).Google Scholar

2 Id. at 268.

3 Rubin, Peter, American Constitution Society Supreme Court Roundup (July 1, 2003), at <http://www.acslaw.org/pdf/SCOTUStrans.pdf>>Google Scholar (describing references to European Court of Human Rights in Supreme Court’s Lawrence decision as “remarkable” and “quite extraordinary”); see also Inferior Imports, Investor’s Bus. Daily, July 10, 2003, at A15 Google Scholar (discussing “disturbing” approach in Lawrence of using foreign courts to interpret Constitution); Mauro, Tony, Supreme Court Opening up to World Opinion, Legal Times, July 7, 2003, at 1, 8 Google Scholar (this year was “breakthrough term” in which “the ostrich’s head came out of the sand”). For a particularly sharp critique, see Robert, H. Bork, Coercing Virtue: the Worldwide Rule of Judges 15–25, 135–39 (2003)Google Scholar (discussing “insidious appeal of internationalism” in constitutional interpretation).

4 I use the term “international sources” in order to include the full panoply of transnational comparative materials that may be borrowed in the interpretive process, including international and foreign laws and practices.

5 For a discussion of these cases, see text at notes 21–24, 40–41, 58-61 infra.

6 Stephen Breyer, Réflexions relatives au principe de fraternité, Address to the 30th Congress of the Association of French-Speaking Constitutional Courts (June 20, 2003), at <http://www.supremecourtus.gov/publicinfo/speeches/sp_06-20-03.html> (“En un mot on trouve partout des juges faisant face aux mêmes espèces de problémes et armés des mêmes espéces d’instruments juridiques.”).

7 Anne-Marie, Slaughter, A Global Community of Courts, 44 Harv. Int’l L.J. 191, 203 (2003)Google Scholar (discussing potential change resulting from cross-fertilization).

8 Fried, Charles, Scholars and Judges, Reason and Power, 23 Harv. J.L. & Pub. Poly 807, 819 (2000)Google Scholar (discussing justice Breyer’s proposal to use comparative materials in Printz v. United States, 521 U.S. 898 (1997)).

9 See Bobbitt, Philip, Constitutional Fate: Theory of the Constitution 3–119 (1982)Google Scholar; Laurence, H. Tribe, American Constitutional Law 75 (2000).Google Scholar

10 For example, Congress recently extended the copyright term to match the European Union’s copyright term. The Court described this as a “rational exercise of the legislative authority conferred by the Copyright Clause.” Eldred v. Ashcroft, 537 U.S. 186, 188, 205-08 (2003). Other appropriate examples include the Court’s occasional recourse to “historical matrix comparativism” to understand the context of our Constitution’s text, structure, and history, see note 46 infra, and the use of such sources to interpret constitutional provisions that textually anticipate recourse to international law. See generally Gerald, L. Neuman, The Uses of International Law in Constitutional Interpretation, 98 AJIL 82, 82–83 (2004)Google Scholar; Michael, D. Ramsey, International Materials and Domestic Rights: Reflections on Atkins and Lawrence, 98 AJIL 69, 71 n.14 (2004)Google Scholar; T. Aleinikoff, Alexander, International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate, 98 AJIL 91, 98 (2004).Google Scholar

11 Although I am described by Harold Koh as a “nationalist academic,” apparently because I have reservations about the use of international sources to interpret the Constitution, see Harold Hongju, Koh, International Law as Part of Our Law, 98 AJIL 43, 55 (2004),Google Scholar I am quite sympathetic when federal courts use international law in some contexts. See generally Roger, P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int’l L. 675 (2003)Google Scholar. As that article suggests, to say that international law and practice has had, and should have, a limited role in constitutional interpretation is not to say that we should blindly stick our head in the sand and reject or ignore the broader reality of “international norm internalization” that is occurring within the judicial, legislative, and executive branches.

12 Harold Hongju, Koh, Paying “Decent Respect” to World Opinion on the Death Penalty, 35 U.C. Davis L. Rev. 1085, 1129 (2002)Google Scholar (“The evidence strongly suggests that we do not currently pay decent respect to the opinions of humankind in our administration of the death penalty. For that reason, the death penalty should, in time, be declared in violation of the Eighth Amendment.”) (emphasis added). This section builds on a brief discussion of the same topic in a previous writing. See Alford, supra note 11, at 772–91.

13 The debate over whether community standards should have any relevance to constitutional interpretation is well-known. But even assuming that critics are correct that “living constitutionalism”—the notion that the Constitution “means from age to age whatever the society (or perhaps the Court) thinks it ought to mean”—is a “conventional fallacy,” Scalia, Antonin, God’s Justice and Ours, First Things, May 2002, at 17, 17 Google Scholar, the Court undoubtedly has embraced this “fallacy,” albeit fettered with certain constraints. Therefore, I do not enter the longstanding discussion over the question of the propriety of using community standards and contemporary norms in constitutional interpretation. I only seek to elaborate on the unsettled question of the logical limits that constrain the Court and that it should impose in resorting to such community standards.

14 On the countermajoritarian difficulty, see, for example, Friedman, Barry, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333, 335 (1998).Google Scholar

15 Alexander, M. Bickel, The Least Dangerous Branch 17–21 (1962).Google Scholar

16 De Geofroy v. Riggs, 133 U.S. 258, 267 (1890).

17 Although not discussed here, it is also implicit in substantive due process jurisprudence. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (fundamental due process rights must be deeply rooted in this nation’s history and tradition and “implicit in the concept of ordered liberty”); see also Reno v. Flores, 507 U.S. 292, 303 (1993) (interest must be so rooted in the traditions and conscience of our people as to be ranked as fundamental); Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (fundamental liberty interest must be an interest traditionally protected by our society); Roger, P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference: A Postscript on Lawrence v. Texas, 44 Va. J. Int’l L. (forthcoming 2004)Google Scholar (“[S]imilar to the Eighth Amendment, reference to global standards under the conception of ordered liberty provides an additional check on substantive due process, to be utilized if it has also been established that a right is part of our own history and tradition.”).

18 Atkins v. Virginia, 536 U.S. 304, 312-16 (2002); Stanford v. Kentucky, 492 U.S. 361, 369 (1989); Enmund v. Florida, 458 U.S. 782, 794-96 (1982); Coker v. Georgia, 433 U.S. 584, 593-97 (1977); Developments in theLaw–The International Judicial Dialogue: When Domestic Constitutional Courts Join the Conversation, 114 Harv. L. Rev. 2049, 2068 (2001).Google Scholar

19 Stanford, 492 U.S. at 369 n.1.

20 Id. (internal citations and quotations omitted).

21 536 U.S. 304 (2002).

22 Brief for Petitioner at 43 n.46, Atkins (No. 00-8452), available in 2001 WL 1663817; Amicus Brief of the European Union, amicus curiae, at 4-18, McCarver v. North Carolina, 533 U.S. 975 (2001) (No. 00-8727), available in 2001 WL 648609 (resubmitted in Atkins); Brief of Diplomats Morton Abramowitz et al., amici curiae, at 7-8, McCarver (No. 00-8727), available in 2001 WL 648609 (resubmitted in Atkins).

23 Atkins, 536 U.S. at 316 & n.21.

24 Of course, a binding treaty addressing the death penalty could assist in determining a federal consensus. See Thompson v. Knight, 487 U.S. 815, 851-52 (1988) (O’Connor, J., concurring). But there are currently no binding international laws reflecting a federal consensus on the death penalty, other than the consensus to use treaty reservations to disarm those laws of relevance. See, e.g., U.S. Senate Resolution of Advice and Consent to Ratification of the International Covenant on Civil and Political Rights, 138 Cong. Rec. 8068 (1992).Google Scholar

25 Stanford v. Kentucky, 492 U.S. 361, 377 (1989).

26 Id.; see also id. at 382 (O’Connor, J., concurring).

27 See John, W. Poulos, The Supreme Court, Capital Punishment and the Substantive Criminal Law: The Rise and Fall of Mandatory Capital Punishment, 28 Ariz. L. Rev. 143, 146-58 (1986)Google Scholar (reviewing historical practice of capital punishment in the United States); James, H. Wyman, Vengeance Is Whose ? The Death Penalty and Cultural Relativism in International Law, 6 J. Transnat’l L. & Pol’y 543, 553 (1997)Google Scholar (discussing support for death penalty).

28 Cf. Harold Hongju, Koh, Paying Decent Respect to International Tribunal Rulings, 96 ASIL Proc. 45, 53 (2002)Google Scholar (“cruel and unusual” should be measured by evolving standards that take into account not just the practice of Texas but also the practice of Kyrgyzstan).

29 Gregg v. Georgia, 428 U.S. 153, 176 (1976) (“The deference we owe to the decisions of the state legislatures under our federal system is enhanced where the specification of punishments is concerned, for these are peculiarly questions of legislative policy.”) (internal citations and quotations omitted).

30 Koh rejects my notion of an international countermajoritarian difficulty on two bases. First, he contends that my argument “assumes that the j ob of judges construing the Constitution is to give expression to majoritarian impulses, when their long-settled role . . . has been to apply enduring principles of law to evolving circumstance without regard to the will of shifting democratic majorities.” Koh, supra note 11, at 55. This argument, which sounds surprisingly similar to Justice Scalia’s concerns about a living Constitution, see, e.g., Scalia, Antonin, Common-Law Courts in a Civil-Law System, in Antonin Scalia, A Matter of Interpretation 45 (1997)Google Scholar, fundamentally undercuts his central thesis. If judges should construe the Constitution on the basis of “enduring principles of law” without regard to shifting democratic majority whim, then would this not also condemn reliance on international majoritarian values? If reference to majoritarian values is never appropriate in constitutional adjudication, then on what basis should developing international norms ever be relevant to understanding constitutional principles such as evolving standards of decency or due process of law? As discussed above, note 13 supra, I do not assume the relevance of majoritarian values for all constitutional provisions. I simply recognize the Court’s application of them in certain contexts—which happen to be those contexts where reference to international sources may be of the greatest potential utility—and accept the limitations that a domestic majoritarian paradigm imposes. Second, Koh argues that transnational legal process is not necessarily antidemocratic because it encompasses the dialogic process by which academics, nongovernmental organizations, judges, executive officials, Congress, and foreign governments interact to make, interpret, internalize, and enforce rules of transnational law. Koh, supra note 11, at 45.1 fully agree that transnational legal process is not necessarily antidemocratic. But if international majoritarians wish to avoid charges that they are being antidemocratic, they should seek abolition of the death penalty through the direct approach of shaping the opinions of the public and the political branches. If such attempts fail, they do so as an appropriate reflection of the primacy of democratic sovereignty over international majoritarian values. But they need not fail and one should not assume they will fail. The evolution of the national consensus with respect to executing the mentally retarded is evidence of its potential for success. A similar evolution could occur regarding the juvenile death penalty. But it is facile to suggest that someone who counsels channeling the discussion of international values away from the constitutional forum and into other for a bears any resemblance to the parochial nationalist Koh describes who scratches his head in benighted puzzlement at how strangely things are done in other countries. Id. at 57.

31 42 U.S.C. §12101(2000).

32 There are, of course, instances in which statutes are coextensive with or embody constitutional restraints, such that precedents from one context may be applied in another. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 286–87 (1978) (Powell, J.) ; Reina v. United States, 364 U.S. 507, 514 (1960); Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 413 n.7 (1984).

33 Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“[A] treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other.”).

34 Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities, OAS Doc. AG/RES, 1608 (XXIX-0199) (June7, 1999), available at <http://www.oas.org/juridico/english/ga-res99/eresl608.htm>.

35 Rodrigo Jimenez, The Americans with Disabilities Act and Its Impact on International and Latin American Law, 52 Ala. L. Rev. 419, 420 (2000); see also Degener, Theresia, International Disability Law—A New Legal Subject on the Rise: The Interregional Experts’ Meeting in Hong Kong December 13-17, 1999, 18 Berkeley J. Int’l L. 180, 184 (2000).Google Scholar

36 Cf. Reid v. Covert, 354 U.S. 1, 18 (1957) (“It would be completely anomalous to say that the Court should use a treaty to interpret the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.”).

37 City of Boerne v. Flores, 521 U.S. 507, 519 (1997).

38 Id. at528-29 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).

39 To take the City of Boerne example, if the Religious Freedom Restoration Act is an impermissible attempt by Congress to define a constitutional guarantee, a treaty that achieved the same result would likewise be impermissible. See Curtis, A. Bradley, Breard, Our Dualist Conception, and the Internationalist Conception, 51 Stan. L. Rev. 529, 555 (1999)Google Scholar. But see Gerald, L. Neuman, Global Dimensions of RFRA, 14 Const. Comment. 33, 42–46, 53 (1997)Google Scholar; Gerald, L. Neuman, The Nationalization of Civil Liberties, Revisited, 99 Colum. L. Rev. 1630, 1645 & n.101 (1999)Google Scholar. An indirect approach of interpreting die guarantee in light of a non-self-executing treaty poses a lesser variation of that same threat.

40 Grutter v. Bollinger, 539 U.S. 306, 342 (2003) (Ginsburg, J., concurring) (internal citations and quotations omitted).

41 A proviso to the ratification stipulates that “[n]othing in this Convention requires or authorizes legislation, or other action,... prohibited by the Constitution of the United States as interpreted by the United States.” U.S. Reservations, Understandings and Declarations, International Convention on the Elimination of All Forms of Racial Discrimination, 140 CONG. REC. 14, 326 (1994).

42 Harry, A. Blackmun, The Supreme Court and the Law of Nations, 104 Yale L.J. 39, 48 (1994)Google Scholar; see also Koh, supra note 12, at 1103.

43 Under The Paquete Habana, reference to and reliance upon international law are appropriate and frequently occur when rights depending upon it are duly presented for their determination. The Paquete Habana, 175 U.S. 677, 700 (1900); see generally Alford, supra note 11, at 746–59. While there are subjects of constitutional law that likely anticipate recourse to international law for resolution, see citations at note 10 supra, the aspirational individual rights provisions of the Constitution are not among them.

44 Reid v. Covert, 354 U.S. 1, 16 (1957); see also Boos v. Barry, 485 U.S. 312, 324 (1988) (“[N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” (quoting Reid v. Covert, 354 U.S. 1, 16 (1957)).

45 Richard, H. Fallon Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1262–63 (1987).Google Scholar

46 However, the Court has on various occasions engaged in what one may call “historical matrix comparativism,” referencing historical international and foreign materials to understand the context of our Constitution’s text and structure. See, e.g., Loving v. United States, 517 U.S. 748, 759-66 (1996); Sun Oil Co. v. Wormian, 486 U.S. 717, 723 (1988);Culombe v. Connecticut, 367U.S. 568, 583-84 (1961); Boyd v. United States, 116 U.S. 616, 624–25 (1886); Kilbourn v. Thompson, 103 U.S. 168, 183-89 (1881); see also Fontana, David, Refined Comparativism in International Law, 49 UCLA L. Rev. 539, 550–51 (2001)Google Scholar (discussing “genealogical comparativism”).

47 Fallon, supra note 45, at 1263. Illustrative of this index are references to “English-speaking peoples” in order to understand the concept of “implicit in ordered liberty.” Seelngraham v. Wright, 430 U.S. 651, 673 n.42 (1977); Foster v. California, 394 U.S. 440, 449–50 (1969) (BlackJ., dissenting); Rochin v. California, 342 U.S. 165, 169 (1952); Wolfv. Colorado, 338 U.S. 25, 27-28 (1949); see also Stanford v. Kentucky, 492 U.S. 361, 369 n.l (1989); Alford, supra note 17. Such “value comparativism” appears to resemble Gerald Neuman’s argument concerning the “suprapositive” use of international law. Neuman, supra note 10, at 84, 87–88.

48 Sandra Day, O’Connor, Keynote Address, 96 ASIL Proc. 348, 351 (2002).Google Scholar

49 Fallon, supra note 45, at 1194, 1244–46, 1264–65 (value arguments below arguments based on text, founders’ intent, theory, and judicial precedent).

50 See Atkins v. Virginia, 536 U.S. 304, 312 (2002) (the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures”); Washington v. Glucksberg, 521 U.S. 702, 711 (1997) (“the primary and most reliable indication of a national consensus is the pattern of enacted [state] laws”); see also text supra at notes 12-27.

51 See, e.g., Lawrence v. Texas, 123 S.Ct. 2472, 2480-83 (2003) (citing Posner, Richard, Fried, Charles, the American Law Institute, the British Parliament, and the European Court of Human Rights as critical of or inconsistent with Bowers) Google Scholar; Atkins, 536 U.S. at 316 n.21 (giving weight to the opinions of the American Psychological Association, religious communities, polling data, and the global community to determine “broader consensus”). For a useful discussion as to whether legal sources should have greater weight in value comparativism than extralegal sources, compare Neuman, supra note 10, at 88, with Ramsey, supra note 10, at 74–75.

52 Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982).

53 Printz v. United States, 521 U.S. 898, 977 (1997) (Breyer, J., dissenting).

54 Tushnet, Mark, The Possibilities of Comparative Constitutional Law, 108 Yale L.J. 1225, 1237–38, 1285–1306 (1999).Google Scholar

55 Id. at 1285–87, 1301.

56 Justice Breyer has openly admitted that neither he nor his clerks can easily find relevant comparative material and that he must rely on international legal experts to find, analyze, and refer the Court to the relevant material. Breyer, supra note 1, at 267–68.

57 Cf. Richard, A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation, 101 Mich. L. Rev. 952, 957 (2003)Google Scholar (advising hesitancy in constitutional interpretation given limited knowledge bases of Supreme Court justices).

58 Lawrence v. Texas, 123 S.Ct. 2472 (2003). Lawrence is by no means the only example. See, e.g., Muller v. Oregon, 208 U.S. 412, 419 & n.l (1908); Fontana, supra note 46, at 585.

59 Lawrence, 123 S.Ct. at 2480. For Bowers v. Hardwick, see 478 U.S. 186 (1986).

60 Lawrence, 123 S.Ct. at 2481.

61 Id.

62 Brief of Mary Robinson et al., amici curiae, Lawrence, 123 S.Ct. 2472 (2003) (No. 02-102), available in 2003 WL 164151 [hereinafter Brief].

63 Lawrence, 123 S.Ct. at 2483.

64 Brief, supra note 62, at *29-30.

65 Id. at *9 (“This Court’s understanding of facts should be informed by the parallel understandings of peer nations. These precedents demonstrate that the Bowers Court misperceived key facts about same-sex sexual conduct.”); at *18 (“ [I]nternational and foreign law recognize sodomy laws as impermissible discrimination based on sexual orientation, which violates fundamental global principles of equal treatment.”); at *21 (“Reflecting an emerging global movement, international treaty bodies and foreign court decisions have correctly viewed same-sex sodomy laws as impermissible discrimination.”); at *23 (“These rulings regarding sodomy laws stand atop a much larger global human rights trend calling for equal treatment of persons without regard to sexual orientation.”).

66 Human Rights Watch, Lesbian, Gay, Bisexual, and Transgender Rights, in World Report 2002 (2002), available at <http://www.hrw.org/wr2k2/lgbt.html>>Google Scholar.

67 Amnesty International Press Release, U.N. Commission on Human Rights: Universality Under Threat over Sexual Orientation Resolution (Apr. 22, 2003), at <http://web.amnesty.org/library/eng-347/index>>Google Scholar.

68 Tielman, Rob & Hammelburg, Hans, World Survey on the Social and Legal Position of Gays and Lesbians, in The Third Pink Book: a Global View of Lesbian and Gay Liberation and Oppression 250–51 (1993)Google Scholar; see also International Gay and Lesbian Human Rights Commission, Sodomy Fact Sheet: A Global Overview, at <http://www.iglhrc.org/files/iglhrc/reports/sodomy.pdf> (visited June 26, 2003)+(visited+June+26,+2003)>Google Scholar (identifying over 80 countries that currently have enforceable sodomy laws).

69 Unless, of course, one is willing to contend that over 74 countries in five continents are uncivilized. Even leading academics who strongly oppose sodomy laws have warned against undue reliance on the “peculiarly European interpretation of human rights standards” reflected in Dudgeon. Laurence, R. Heifer & Anne-Marie, Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273, 384 n.496 (1997)Google Scholar. Noting that there were “74 countries around the world [that] still criminalized homosexual conduct between consenting adults,” Professors Heifer and Slaughter argue that if one were to “rely unthinkingly on European precedents concerning homosexuality,” one could “well be accused of imposing a specialized view of human rights throughout the planet.” Id. Indeed justice Scalia’s dissent in Lawrence makes just such an accusation. He challenges the notion of an emerging awareness as “factually false,” accusing the majority of “ignoring... the many countries that have retained criminal prohibitions on sodomy.” Lawrence, 123 S.Ct. at 2495 (Scalia, J., dissenting).

70 Washington v. Glucksberg, 521 U.S. 702, 718-19 & n.16 (Rehnquist, C.J. Joined by O’Connor, Scalia, Kennedy, Thomas, JJ.); id. at 737 (O’Connor, J., joined by Ginsburg, Breyer, JJ.); id. at 764, 775-87 (Souter, J., concurring); see also Richard, H. Fallon, Implementing the Constitution 68 (2001)Google Scholar (“For the concurring justices as much as for the majority [in Glucksberg], it mattered enormously that public debate about matters of death and dying was currently under way.”). More likely, the Court recognized the checkered treatment of homosexuals at home and abroad but was attempting—as in ifoeand Brown—to lead the nation (and perhaps the world) in a particular direction, calling upon “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 867 (1992).

71 A possible antidote to such selective advocacy is judicial education about international and foreign law, O’Connor, supra note 48, at 352, and effective advocacy from all perspectives. Breyer, supra note 1, at 267 (discussing “chicken and egg problem” of comparative advocacy). Even then, however, independent comparative analysis is remarkably difficult. Glucksberg, 521 U.S. at 787 (Souter, J., concurring) (questioning whether independent investigation of foreign country’s legal administration can be undertaken by American litigation). Having worked for an international tribunal that comprehensively analyzed inheritance laws in numerous languages in dozens of countries in order to resolve Holocaust claims against Swiss banks, I can personally attest to the difficulties associated with a truly systematic comparative analysis. See Roger, P. Alford, The Claims Resolution Tribunal and Holocaust Claims Against Swiss Banks, 20 Berkeley J. Int’l L. 250, 269–70 (2002).Google Scholar

72 O’Connor, supra note 48, at 351 (“The fact is that international and foreign law are being raised in our courts more often and in more areas than our courts have the knowledge and experience to deal with. There is a great need for expanded knowledge in the field, and the need is now.”).

73 Of the more than thirty briefs filed in Lawrence, only one amicus brief addressed Dudgeon and only three briefs addressed international law, all on the side of petitioners. Brief, supra note 62; Brief of American Bar Association as amicus curiae, Lawrence (No. 02-102), available in 2003 WL 164108; Amicus Curiae Brief of Human Rights Campaign et al., Laurence (No. 02-102), available in 2003 WL 152347.

74 See, e.g., Flaherty, Martin, History “Lite” in Modem American Constitutionalism, 95 Colum. L. Rev. 523 (1995).CrossRefGoogle Scholar

75 United States v. Verdugo-Urquidez, 494 U.S. 259, 285 (1990) (Brennan, J., dissenting).

76 Days, Drew, American Constitution Society Supreme Court Roundup (July 1, 2003), at<http://www.acslaw.org/pdf/SCOTUStrans.pdf>>Google Scholar (describing the Supreme Court as no longer the world leader in protecting civil liberties).

77 See Henkin, Louis, A New Birth of Constitutionalism: Genetic Influences and Genetic Defects, 14 Cardozol. Rev. 533, 542–45 (1993)Google Scholar (discussing defects of human rights instruments).

78 Otis v. Parker, 187 U.S. 606, 609 (1903).

79 For example, although Justice Breyer denies that comparativism tries “to move the law in a particular substantive direction,” he defends its use in order to learn what “others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups.” Breyer, supra note 1, at 265; cf Lawrence, 123 S.Ct at 2483 (no showing that government interest in limiting rights accepted elsewhere is more legitimate here).

80 For a detailed comparison of abortion laws, see Vicki, C. Jackson & Tushnet, Mark, Comparative Constitutional Law 1–143, 173–80 (1999).Google Scholar

81 The Department of State has described the Convention as “abortion neutral” and the Senate Committee on Foreign Relations has expressed the understanding that “nothing in this Convention shall be construed to reflect or create any right to abortion and in no case should abortion be promoted as a method of family planning.” S. Rep. No. 103–38, at 52 (1994); Anne, F. Bayefsky, CEDAW: Threat to, or Enhancement of, Human Rights? 94 ASIL Proc. 197, 202 (2000)Google Scholar; Nora, O’Connell & Sharma, Ritu, Treaty for the Rights of Women Deserves Full U.S. Support, Hum. Rts., Winter 2003, at 22.Google Scholar

82 Population and Human Rights: Proceedings of the Expert Group Meeting on Population and Human Rights, Geneva, 3–6 April 1989, UN ESCOR, at 45–46, UN Doc. ST/ESA/SER.R/107 (1990) (only 18 of 82 countries surveyed permit abortion on request); Jill, M. Bracken, Respecting Human Rights in Population Policies: An International Customary Right to Reproductive Choice, 6 Ind. Int’l & Comp. L. Rev. 197, 225–26 (1995)Google Scholar; Sarah, A. Rumage, Resisting the West: The Clinton Administration’s Promotion of Abortion at the 1994 Cairo Conference and the Strength of the Islamic Response, 27 Cal. W. Int’l L.J. 1, 77 (1996)Google Scholar (noting that almost every Latin American country has a right-to-life charter; Ireland and Germany have similar constitutional provisions; and other states, including Muslim states, have strong legal and cultural prohibitions).

83 Mary Ann, Glendon, Abortion and Divorce in Western Law 24–25 (1987)Google Scholar; see also id. at 145-54 (detailed appendix of laws of various countries); Lynn, D. Wardle, The Quandary of Pro-Life Free Speech: A Lesson from the Abolitionists, 62 Alb. L. Rev. 853, 868 (1999).Google Scholar

84 Lawrence, 123 S.Ct. at 2483.

85 Mary Ann, Glendon, Rights Talk: The Impoverishment of Political Discourse 167–68 (1991)Google Scholar (noting that Court’s attention was invited to foreign decisions in Webster, and that as in Bowers, Court could have benefited from reflection on foreign decisions); see also Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 945 n.1 (1992) (Rehnquist, C.J., concurring in part, dissenting in part).

86 Breyer, supra note 1, at 265 (quoting Ginsburg & Merritt, supra note 1, at 282).

87 Dan, M. Kahan, The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413, 456 & n.202 (1999).Google Scholar

88 Mari, J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2347–48 (1989).Google Scholar

89 See Been, Vicki & Beauvais, Joel, The Global Fifth Amendment? NAFTA’s Investment Protection and the Misguided Quest for an International “Regulatory Takings” Doctrine, 78 N.Y.U.L.Rev. 30, 59–87 (2003)Google Scholar (discussing the more expansive compensation protections of the North American Free Trade Agreement as compared to the Fifth Amendment); John, D. Echeverria, The Real Contract on America, Envtl. F., July-Aug. 2003, at 28, 35, available at <http://www.law.georgetown.edu/gelpi/papers/realcontract.pdf>Google Scholar; see also Alford, supra note 11, at 786–88.

90 Witte, John Jr., The Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 Notre Dame L. Rev. 371, 440 (1996).Google Scholar

91 Linda, S. ilberman, Comparative jurisdiction in the International Context: Will the Proposed Hague Judgment Convention be Stalled? 52 Depaull. Rev. 319, 328–31, 338–45 (2002)Google Scholar; see also Restatement (Third) of the Foreign Relations Law of the United States §421 cmt. e (1987)Google Scholar (“tag” jurisdiction unacceptable under international law).

92 Silberman, supra note 91, at 323-24, 345; see also Beth van, Schaack, In Defense of Civil Redress: The Domestic Enforcement of Human Rights Norms in the Context of the Proposed Hague Judgments Convention, 42 Harv. Int’l L.J. 141 (2001)Google Scholar; cf Andrew, L. Strauss, Where America Ends and the International Order Begins: Interpreting the Jurisdictional Reach of the U.S. Constitution in Light of a Proposed Hague Convention on Jurisdiction and Satisfaction of Judgments, 61 Alb. L. Rev. 1237 (1998).Google Scholar

93 See Stephens, Beth, Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 Yale J. Int’l L. 1, 17–34 (2002)Google Scholar; Stephens, Beth, Federalism and Foreign Affairs: Congress’ Power to “Define and Punish .. . Offenses Against the Law of Nations,” 42 Wm. & Mary L. Rev. 447, 483–525 (2000).Google Scholar

94 See, e.g., Dred Scott v. Sandford, 60 U.S. 393, 410 (1856) (although “the general words” in the Declaration of Independence appear to “embrace the whole human family . . . the men who framed this declaration . . . knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery”); Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893) (due process claim denied; international law justifies exclusion of aliens or admission on such conditions as the sovereign may see fit to prescribe); Wolf v. Colorado, 338 U.S. 25, 29 (1949) (questioning Weeks v. United States exclusionary rule given that “most of the English-speaking world does not treat this remedy as an essential ingredient of the right”).