Constitutional Law and Foreign Sources

In class we discussed this relative to the death penalty for offenders under 18 and for the mentally retarded.

Here is an excerpt from Scalia's dissent in Roper v. Simmons (2005),

The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

One response to this, on the ConLawProf discussion list, is this:

The USSC has been citing foreign cases for centuries. In 2002 I did some quick and dirty research to discover that the USSC has cited cited to Blackstone's Commentaries at least 350 times, many using Blackstone as an authority for our law. The Court has also cited the great English jurist, Chief Justice Lord Mansfield more than 325 times. The Court has over 190 citations to the Magna Carta. The court has cited Montesquieu', Locke, Grotious, etc. The Court often relied on the works of Story, who cited and quoted from European legal commentators all the time. In other words, the Supreme Court and most other American courts, from the very beginning, relied on foreign law and foreign precedents. To offer just easy eample, we borrowed the fellow servant rule from England in the 1840s.

The author of this post then asks us to consider one of the arguments for those who support the posting of the 10 commandments in courthouses, that they provide a basis for our laws.

Back to Scalia, who argues for American exceptionalism:

the basic premise of the Court’s argument–that American law should conform to the laws of the rest of the world–ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law–including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American.

As we see with constitutional interpretation, application of principles can be done in interesting ways. The principle "We are different" may lead to the exclusionary rule, and executing juveniles. What principle might lead to support of both the exclusionary rule, and not executing juvenile offenders? (what might a due process model adherent say?).

Here is an excerpt of a second post on the ConLawProf list

There's a special problem with the death penalty, which is that the Supreme Court has interpreted the Eighth Amendment to bar punishments that are cruel and unusual in light of "evolving standards of decency." Here the question is over what population do we assess what those evolving standards are, and not (I think) really over whether non-U.S. norms generally are properly taken into account in interpreting the Constitution.

...Because the controversy has arisen only recently, there's relatively little authoritiative [writing] on it. In my view, Vicki Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening up the Conversation on “Proportionality,” Rights and Federalism, 1 U. PA. J. CONST. L. 583 (1999) (available at http://www.law.upenn.edu/conlaw/issues/vol1/num3/jackson/jackson_tf.html) remains the best introduction.

Finally, I link to this New Yorker article:

SWING SHIFT
How Anthony Kennedy’s passion for foreign law could change the Supreme Court.
by JEFFREY TOOBIN
Issue of 2005-09-12
Posted 2005-09-05