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Judicial Globalization in the Service of Self-Government

Published online by Cambridge University Press:  25 March 2011

Martin S. Flaherty
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Abstract

For at least the past several decades, judges around the world have been looking beyond their own states' jurisprudence to international law and the decisions of foreign courts in order to apply domestic law. This widespread practice is part of a phenomenon that Anne-Marie Slaughter calls “judicial globalization.” The American judiciary, however, has exhibited a distinct diffidence toward the use of comparative and international law to decide domestic cases, a diffidence that extends to many elected officials as well… .

Various defenses of the Supreme Court's reliance on international and comparative sources have been made, not least by some of the Supreme Court justices themselves. None of the defenses, however, have met the democratic objections head-on. Instead, justifications have mainly defended the general utility of referencing additional sources rather than the specific legitimacy of referencing sources from outside the U.S. legal system. The defenses to date fall short for at least two sets of reasons. They fail to grapple with legitimate concerns about the practice. In consequence, they offer no reasons for those opposed to this practice to reconsider their resistance.

Type
Articles
Information
Ethics & International Affairs , Volume 20 , Issue 4 , December 2006 , pp. 477 - 503
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2006

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References

1 Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2004), p. 66. Other aspects of judicial globalization include: judges meeting with their foreign counterparts, or taking advantage of international sojourns, and courts of different national jurisdictions coordinating with one another in complex international litigation (Ibid., pp. 65–103).

2 See Martin S. Flaherty, “Aim Globally,” Constitutional Commentary 17 (2000), p. 285. See also “Report of Judicial Colloquium on the Domestic Application of International Human Rights Norms,” Bangalore, India, reproduced as an appendix to Michael Kirby, “The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms,” Australian Law Journal 514, no. 62 (1988), pp. 531–32 (reproducing the “Bangalore Principles,” which commend the “growing tendency for national courts to have regard to” international norms in cases where “domestic law—whether constitutional, statute or common law—is uncertain or incomplete”).

3 See Sarah H. Cleveland, “Our International Constitution,” Yale Journal of International Law 31, no. 1 (2005).

4 Lawrence v. Texas, 539 U.S. 558 (2003).

5 Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (opinion of Ginsburg, J., concurring).

6 Roper v. Simmons, 543 U.S. 551 (2005); and Atkins v. Virginia, 536 U.S. 304, 316–17, no. 21 (2002).

7 See Andrew Moravcsik, “In Defence of the ‘Democratic Deficit’: Reassessing Legitimacy in the European Union,” Journal of Common Market Studies 40 (2002), p. 603.

8 Justices Scalia and Breyer debated the practice at American University, “A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication”; available at http:\\www.wcl.american.edu/secle/founders/2005/050113.cfm. Justice Ginsburg has also weighed in, stating: “In the area of human rights, experience in one nation or region may inspire or inform other nations or regions.… In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups” (Ruth Bader Ginsburg, “Affirmative Action as an International Human Rights Dialogue,” Brookings Review 18, no. 1 [2000]).

9 See Eric A. Posner and Cass R. Sunstein, “The Law of Other States,” Chicago Public Law and Legal Theory Working Paper No. 119 (2006); available at http://www.law.uchicago.edu/academics/publiclaw/119.pdf.

10 Preliminary efforts to develop other democratic justifications—as well as these at greater length—are available in Martin S. Flaherty, “Judicial Globalization in the Service of Self-Government” (Princeton Law and Public Affairs Paper No. 04-017, 2004, unpublished); available at ssrn.com/abstract=600677.

11 See Cleveland, “Our International Constitution,” n. 4.

12 See Flaherty, “Aim Globally,” n. 3.

13 Atkins, 536 U.S. at 304 (2002).

14 Ibid., at 337, 347–48 (Scalia, J., dissenting). In less flamboyant fashion, the chief justice agreed, stating: “For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries are simply not relevant” (Ibid., at 312, 325 [Rehnquist, C. J., dissenting]).

15 See Anne-Marie Slaughter, “Judicial Globalization,” Virginia Journal of International Law 40 (2000), p. 1103; and Harold Hongju Koh, “Bringing International Law Home,” Houston Law Review 35 (1998), p. 623 (noting and advocating the phenomenon).

16 Lawrence, 539 U.S. at 576–77 (2002).

17 Grutter, 539 U.S. at 342 (Ginsburg, J., concurring).

18 Atkins, 536 U.S. at 304.

19 Printz v. United States, 521 U.S. 898, 976–78 (1997) (Breyer, J., dissenting).

20 Roper, slip op. at 6.

21 Ibid., at 21–23.

22 Roper, slip op. at 16.

23 Ibid., at 18.

24 548 U.S. __ (2006), slip op. at 49–72. For an approving commentary, see Martin S. Flaherty, “More Real than Apparent: Separation of Powers, the Rule of Law, and Comparative Executive ‘Creativity’ in Hamdan v. Rumsfeld,” Cato Supreme Court Review 2005– 2006 (Cato Institute, forthcoming 2006). Conversely, the Court rejected claims that the Vienna Convention on Consular Relations mandated either the exclusionary rule for a state party's failure to advise a foreigner placed under arrest of the right to see a consular official of his or her own country or that the treaty precluded a state's reliance on procedural default rules to preclude assertion of such a claim (Sanchez-Llamas v. Oregon, 548 U.S. ___ [2006]).

25 Justices Scalia and Breyer, “A Conversation on the Relevance of Foreign Law.”

26 In response to Roper, resolutions were introduced in the House and Senate indicating that U.S. judges should not rely on foreign legal materials in interpreting the U.S. Constitution, unless these reflect the Constitution's “original understanding.” H. Res. 97, 109th Cong., 1st sess. (February 15, 2005); and S. Res. 92, 109th Cong., 1st Sess. (March 20, 2005). A year before a similar resolution had been introduced in the House, H. Res. 568, 108th Cong., 2nd Sess. (March 17, 2004). None of these resolutions passed, however.

27 Testimony of John Roberts before the Senate Judiciary Committee, September 13, 2005 (responding to a question from Senator Jon Kyl).

28 “Alito Responds to Senator Kyl on the Use of Foreign Law: Siding with the Anti-Internationalists?” Opinio Juris (January 10, 2006); available at lawofnations.blogspot.com/2006/01/alito-responds-to-senator-kyl-on-use.html.

29 Atkins, 536 U.S. at 347–48 (Scalia, J., dissenting) quoting Thompson v. Oklahoma, 487 U.S. 815, 868–69 (1988) (Scalia, J., dissenting).

30 See John O. McGinnis, “Foreign to Our Constitution,” Northwestern University Law Review 100 (2005), p. 303.

31 Ken I. Kersch, “The New Legal Transnationalism, Globalized Judiciary, and the Rule of Law,” Washington University Global Studies Law Review 4, no. 2 (2005), n. 31; and McGinnis, “Foreign to Our Constitution,” n. 32.

32 See Steven G. Calabresi and Stephanie Dotson Zimdahl, “The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision,” n. 2; Ernest A. Young, “Foreign Law and the Denominator Problem,” Harvard Law Review 119 (2005), pp. 148, 165; and Jed Rubenfeld, “Unilateralism and Constitutionalism,” New York University Law Review 79 (2004), pp. 1971, 1999.

33 This is not to say, as Jed Rubenfeld argues, that U.S. legal culture is distinctively democratic compared to other systems, such as those that comprise the European Union. Jed Rubenfeld, “The Two World Orders,” Wilson Quarterly 27, no. 4 (2003), pp. 22–36. For analyses that are more rigorous, see Anne-Marie Slaughter, “Leading Through Law,” Wilson Quarterly 27, no. 4 (2003), pp. 37–44; and Moravcsik, “In Defence of the ‘Democratic Deficit, ’” n. 10.

34 This is frankly an impressionistic statement based upon years of surveying the literature on constitutional interpretation as well as participating in related conferences. See also Randy E. Barnett, “An Originalism for Nonoriginalists,” Loyola Law Review 45 (1999), pp. 611, 613.

35 Compare Moravcsik, “In Defence of the ‘Democratic Deficit.’”

36 International Covenant on Civil and Political Rights, art. 14(1), GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force March 23, 1976.

37 Harold Hongju Koh, “Complementarity Between International Organisations on Human Rights/The Rise of Transnational Networks as the ‘Third Globalization, ’” Human Rights Law Journal 21 (2000), p. 307.

38 Slaughter has developed her previous writings on the subject in A New World Order.

39 See Robert O. Keohane and Joseph Nye, Jr., “Transgovernmental Relations and International Organizations,” World Politics 27 (1974), pp. 39–62.

40 Slaughter, A New World Order, pp. 36–64.

41 See Kal Raustiala, “The Architecture of International Cooperation: Transgovernmental Frameworks and the Future of International Law,” Virginia Journal of Transnational Law 43 (2002), pp. 1–26.

42 See Sydney A. Shapiro, “International Trade Agreements, Regulatory Protection, and Public Accountability,” Administrative Law Review 54, no. 1 (2002), p. 435.

43 The Independent Commission for Policing in Northern Ireland, A New Beginning: Policing in Northern Ireland (September 1999), p. 101; available at http:\\www.pixunlimited.co.uk/pdf/news/Northern_Ireland/fullreport.pdf.

44 Ibid.

45 For a discussion of the practice with regard to international human rights law, see Association of the Bar of the City of New York and Center for Human Rights and Global Justice, NYU School of Law, “Torture by Proxy: International and Domestic Law Applicable to ‘Extraordinary Renditions, ’” Record of the Association of the Bar of the City of New York 60 (2005), p. 13.

46 See Martin S. Flaherty, “The Most Dangerous Branch,” Yale Law Journal 105 (1996), p. 1725.

47 Slaughter, A New World Order, pp. 104–106.

48 Ibid., pp. 104–30.

49 For critiques, see Lawyers Committee for Human Rights, “Human Rights and Legal Defense in Northern Ireland: The Abuse and Intimidation of Defense Lawyers and the Murder of Patrick Finucane” (1993) (on U.K. legislation); Human Rights First, “A Year of Loss: Reexamining Civil Liberties Since September 11” (2002) (on the USA PATRIOT Act and related measures), available at http:\\www.humanrightsfirst.org/us_law/loss/loss_main.htm; and Crowley Program in International Human Rights, “Unjust Order: Malaysia's Internal Security Act” (2002), available at papers.ssrn.com/sol3/papers.cfm?abstract_id=447802.

50 Slaughter, A New World Order, p. 65; see also Slaughter, “Judicial Globalization,” p. 16.

51 Slaughter, A New World Order, pp. 82–99.

52 See “ Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, Judgment No. S.C. 73/93,” Human Rights Law Journal 14 (1993), p. 323 (surveying comparative and international law in interpreting the Zimbabwean Constitution regarding delay in application of the death penalty).

53 See HKSAR v. Ng Kung Siu (1999) 2 HKC 10 (opinion of the Court of Appeal of Hong Kong).

54 See A (FC) and others (FC) v. Secretary of State for the Home Department (2005) UKHL 71.

55 Constitution of the Republic of South Africa, arts. 39(1) b & c (1996).

56 See Slaughter, A New World Order, pp. 104–107, 127–30.

57 The Federalist No. 48 (Madison), Clinton Rossiter, ed. (New York: New American Library, 1961), p. 309; and Flaherty, “The Most Dangerous Branch,” pp. 1810–39.

58 Flaherty, “The Most Dangerous Branch,” pp. 1767–68, 1821–26; and Peter M. Shane, “Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking,” Arkansas Law Review 48 (1995), pp. 161, 212.

59 U.S. Const. art. I, secs. 2 & 3; art. II, secs. 1 & 2.

60 See Universal Declaration of Human Rights, art. 21.

61 Hamdi v. Rumsfeld 542 U.S. 507 (2004) (Scalia, J., dissenting).

62 Youngstown Sheet & Tube Co. v. Sawyer, 543 U.S. 579, 650–54 (1952) (Jackson, J., concurring). Indeed, most recent uses of foreign materials purport to “confirm” conclusions already achieved through domestic analysis. See Roper, slip op. at 21 (“Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty”).

63 See text below accompanying notes 72 and 73.

64 Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (emphasis added).

65 See Restatement (Third) of the Foreign Relations Law of the United States (1986), sec. 114 (“Where fairly possible, a United States statute should be construed so as not to conflict with international law or with an international agreement of the United States”). This modern version replaces Marshall's “if any other possible construction obtains” with the less demanding “where fairly possible.”

66 Compare Martin S. Flaherty, “John Marshall, McCulloch v. Maryland, and We the People: Revisions in Need of Revising,” William & Mary Law Review 43 (2002), p. 1339.

67 The Roper Court noted that since 1990 only Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China had executed juvenile offenders, and that each of these nations had since either abolished the penalty or made a public disavowal of the practice (Roper, slip op. at 23).

68 Curtis A. Bradley, “The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law,” Georgetown Law Journal 86 (1998), p 86.

69 Christopher L. Eisgruber, Constitutional Self-Government (Cambridge: Harvard University Press, 2001), pp. 64–66.

70 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap Press, 1967), p. 27.

71 See Curtis A. Bradley and Martin S. Flaherty, “Executive Power Essentialism and Foreign Affairs,” Michigan Law Review 105 (2004), p. 525.

72 See David Lang, Foreign Policy in the Early Republic (Baton Rouge, La.: Louisiana State University Press, 1985); and Thomas H. Lee, “Making Sense of the Eleventh Amendment: International Law and State Sovereignty,” Northwestern University Law Review 96 (2002), p. 1027.

73 Declaration of Independence, para. 1.

74 See Thomas H. Lee, “International Law, International Relations Theory, and Preemptive War: The Vitality of Sovereign Equality Theory Today,” Law & Contemporary Problems 67 (2004), p. 147.

75 U.S. Const. art. VI, cl. 2. See Marin S. Flaherty,“History Right?: Historical Scholarship, Original Understanding, and Treaties as ‘Supreme Law of the Land, ’” Columbia Law Review 99 (1999), p. 2095.

76 Max Ferrand, ed., Records of the Federal Convention of 1787, vol. 1 (New Haven: Yale University Press, 1966), p. 316.

77 Ibid., p. 164.

78 U.S. Const. art. I, sec. 8, cl. 10.

79 See Flaherty, “History Right?” pp. 2140–49.

80 Ibid.

81 See The Federalist Nos. 78–83 (Hamilton), pp. 465–510.

82 The Federalist No. 3 (Jay), p. 15.

83 See text above accompanying notes 47–57.

84 See “ Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General,” pp. 323, 329.

85 Lawrence, 539 U.S. at 576–77.

86 Bowers v. Hardwick, 478 U.S. 186 (1986).

87 Roper, slip op. at 21.

88 For a discussion, see Martin S. Flaherty, “Are We to Be a Nation?: Federal Power vs. ‘States’ Rights’ in Foreign Affairs,” University of Colorado Law Review 70 (1999), pp. 1288–89.

89 Roper, 84 (Scalia, J., dissenting).

90 Young, “Foreign Law and the Denominator Problem,” p. 167 (citation omitted).

91 See ibid., pp. 167–68; McGinnis, “Foreign to Our Constitution,” n. 32; Kersch, “Globalized Judiciary,” n. 31; and Michael D. Ramsey, “International Materials and Domestic Rights: Reflections on Atkins and Lawrence,” American Journal of International Law 98 (2004), p. 69.

92 Atkins, 536 U.S. at 316–17, n. 21; Roper, at 21–25.

93 Lawrence, 539 U.S. at 576–77.

94 Martin S. Flaherty, “History ‘Lite’ and Modern American Constitutionalism,” Columbia Law Review 95 (1995), p. 523.