Defending the Rehnquist Court's Uses of International Law as an Interpretive Tool

7/28/2019 Defending the Rehnquist Court's Uses of International Law as an Interpretive Tool

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DEFENDING THE REHNQUIST COURTS USES OF INTERNATIONAL LAW

AS AN INTERPRETIVE TOOL

It does not lessen our fidelity to the Constitution or our pride in its origins to

acknowledge that the express affirmation of certain fundamental rights by other

nations and peoples simply underscores the centrality of those same rights within our

own heritage of freedom. (Roper v. Simmons)


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INTRODUCTION

In recent years the Supreme Court has come under increasing attack for its

willingness to resort to international sources in its Constitutional jurisprudence.1

Especially troubling to many were the references to international law inLawrence v.

Texas, which struck down a state statute criminalizing sodomy and the rather lengthy

resort to international standards inRoper v. Simmons, which outlawed a states execution

of juvenile offenders. In the few short months since the release of the decision inRoper

the attacks by political leaders have become especially harsh, partially in response to the

perceived internationalization of the Eighth Amendment that occurred in that majority

opinion. At a conference unambiguously titled Confronting the Judicial War on Faith

Rep. Tom Coburn famously stated of activist judges that, I dont want to impeach them,

I want to impale them.2 Meanwhile other legislators have sought methods of

constraining the activism of judges by legislative means. Perhaps the clearest example

of this can be seen in a resolution recently proposed by Rep. James Feeney which states

in part that:

it is the sense of the House of Representatives that judicial interpretations

regarding the meaning of the laws of the United States should not be based inwhole or in part on judgments, laws, or pronouncements of foreign institutions

unless such foreign judgments, laws, or pronouncements are incorporated into the

legislative history of laws passed by the elected legislative branches of the United

States or otherwise inform an understanding of the original meaning of the lawsof the United States.3

1 See generally, Bork, Robert H. Coercing Virtue: The Worldwide Rule of Judges. Washington, DC: AEI

Press, 2003. Judge Borks latest work is essentially premised on the fact that law is becoming international,

and that the internationalization of law inevitably leads to judicial activism. For him and many originalists

these concepts are inextricably linked in a vicious cycle.2 Blumenthal, Max. In Contempt of Courts. The Nation. April 11, 2005. (web edition available at:

http://www.thenation.com/doc.mhtml?i=20050425&c=2&s=blumenthal).3 H. Res. 568, 108th Cong. (2004).

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While this is only a resolution and thus technically lacks the authority to bind the

courts, the very existence of such a legislative pronouncement evidences the deep divide

between many of this countrys legislators and its judges. Yet that is not the only place

the divide is found. There are certain members of the Court who substantially comply

with the demands of the proposed Feeney Resolution and are equally appalled by the

increasing role of international sources in the Courts recent decisions. These originalists

agree with the legislators who hope to reign in activist judges and believe that their

chosen methodology effectively does so.

Clearly an attempt to reign in judges who have gone outside the permissible

bounds of constitutional interpretation is legitimate, as allowing judges to act in a wholly

unrestrained manner and make decisions based solely on foreign laws that agree with

their personal values cannot serve the interests of a stable, democratic society. But

before seeking to place new constraints on judges, one must first ask whether those

judges have done anything impermissible. While opponents of the use of international

law as a tool of constitutional interpretation are quick to characterize it as an illegitimate

deviation from any valid interpretive methodology, this paper is an attempt to

demonstrate that such claims are overstated. Like any tool, international law can be

misused or applied poorly. But the fact that a tool may be difficult to apply does not

render it Constitutionally illegitimate..

The goal here is not to convince originalist judges or politicians that legal

reasoning informed by international law or consensus is right. That decision is one that

within certain bounds must be left to a judge to decide based on his or her own values.

Rather, the argument here begins with the premise that international law is one of many

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tools available to judges in their interpretation of the Constitution. Nothing in the text of

the Constitution overtly compels judges to use international law. Likewise, nothing in

the text of the Constitution compels anyone to ignore it. International law, when properly

used, may be just as legitimate an interpretive tool as any other, and the Rehnquist Court

is using it appropriately.

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THE LEGITIMACY OF INTERNATIONAL LAW AS AN INTERPRETIVE

TOOL

I. THE REHNQUIST COURTS METHODS

A. A Typology of Uses of International Law

To fully evaluate the Rehnquist Courts uses of international law in constitutional

interpretation would require an examination of hundreds of cases and thousands of

references, both direct and oblique, by judges with very different views on the matter in

cases with very different facts, outcomes, and levels of societal importance. As such a

task is beyond the scope of this paper, I will instead borrow from the work of one who

has already done this extensive survey of the Courts methods and developed a typology

of its uses of international law.

In her influential article Importing Constitutional Norms from a Wider

Civilization: Lawrence and the Rehnquist Courts Use of Foreign and International Law

in Domestic Constitutional Interpretation, Joan Larsen asserts that the Courts uses of

international law can be divided into three basic categories: the expository, the empirical,

and the substantive.4 While it is important to show here that each of these uses by the

Court is legitimate, because the first two uses of international law discussed are rather

uncontroversial I will simply set these forth fairly briefly.5 The primary disagreement

regards the third type: the substantive use of international law. It is this use of

4 Larsen, Joan L. 65 Ohio State Law Journal 1283, 1287-88 (2004). While other scholars have attempted tocreate typologies of this sort, I have chosen to structure my discussion as a response to Larsens for two

primary reasons. First, while perhaps less descriptive than others, it is more complete. Second, it is cited

approvingly by Justice Scalia in his dissent inRoper. Thus, arguing against Professor Larsens position

also frames the debate with the originalist position advanced by Scalia.5 Even Justices Scalia and Thomas, the Courts harshest critics of international interpretation, have joined in

opinions using methods Larsen terms expository and empirical. Larsen herself argues that these are

legitimate uses of international law. Thus, there is little debate necessary in these sections.

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international law that is most controversial and which divides the Court. While Professor

Larsen argues that this use of international law is wholly unjustifiable, I will attempt to

demonstrate that the Constitution does not prohibit such a use of international law, and

that in fact such a use can be quite helpful in providing a partial solutions to the

countermajoritarian difficulty.

1. The Expository Use of International Law.

International law plays an expository role when the Court uses a foreign law rule

to contrast and thereby explain a domestic constitutional rule.6 In this role international

law is used less to interpret the Constitutional provision or domestic legislation at issue

than to explain or illustrate the Courts reasoning. For example, inRaines v. Byrd7 the

Court was asked to decide whether members of Congress had standing to challenge the

Line Item Veto Act. Clearly there was no need for international law in order to decide a

case characterized by a power struggle between the legislative and executive branches of

the United States. Yet Chief Justice Rehnquist, who favors only very limited uses of

international law in interpretation, chose to reference the standing doctrines of the courts

of Europe. After providing these counterexamples to the American system, the Chief

Justice wrote: There would be nothing irrational about a system which granted standing

in these cases; some European constitutional courts operate under one or another variant

of such a regime.8 Yet in the end, the Court concludes that the European model is

obviously not the regime that has obtained under our Constitution to date. Our regime

contemplates a more restricted role for Article III courts.9

6 Larsen at 1287.7 521 U.S. 811 (1997).8Raines, 521 U.S. at 828.9Raines,521 U.S. at 828.

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Clearly, the Court could have reached its result without reference to international

law, yet the reference seems highly considered and is exceptionally well documented.

The extent of Rehnquists citations reveal that this was not merely extraneous verbage.

Still, few people would argue that the Chief Justices use of international law in this

manner is constitutionally illegitimate or unjustified. International law has clearly not

been elevated above any domestic legislation or given any controversial power. In fact, it

seems to have been given no power at all, as the international position is mentioned,

cited, and summarily disregarded.

Only in the broadest sense can this expository, comparison-seeking role use of

international law be considered interpretive at all. While the foreign law is used to

provide clarity, that clarity is not for the benefit of the decision-maker. Rather it is for

the benefit of the reader attempting to understand the decision. As Professor Larsen

states, the expository use of international reference is merely a way of explaining what

the United States law is by contrasting it with an example of what it is not.10 The

foreign law is given no authority in this role, and its power is wholly communicative

rather than legal in nature. As it causes no legally relevant changes, it requires no legal

justification. If it is helpful to the Chief Justice in communicating the precise meaning of

his opinion, it is appropriate and uncontroversial.

2. The Empirical Use of International Law

The Court utilizes international law in the method described by Prof. Larsens

typology as empirical when it essentially scours the globe for evidence that is unavailable

domestically. Perhaps the best example of this international evidence seeking is in the

10 Larsen at 1289.

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case ofWashington v. Glucksberg.11 Here the Court was forced to determine whether a

states ban on physician assisted suicide violated the demands of due process. After

determining as a matter of law that rational basis review was proper, the Court then had

to apply this standard by comparing the available evidence to the Courts standard of

rationality and determine whether the ban could survive. Yet, this case involved the first

state to ban physician assisted suicide. While there was social science evidence and

expert testimony on the issue, there was no similar domestic policy to provide concrete

evidence of the effects of such a law. Therefore, the Court turned to international sources

stating: Respondents' proposals, as it turns out, sound much like the guidelines now in

place in the Netherlands, the only place where experience with physician-assisted suicide

and euthanasia has yielded empirical evidence about how such regulations might affect

actual practice.12 After listing a litany of problems resulting from governmental

regulation of voluntary euthanasia, the Court concluded that the banning of this practice,

as opposed to merely imposing regulations, was reasonable in light of the negative

consequences that arose in the Netherlands.

Here again, the Court has voluntarily used international law to reach an

interpretation of the Constitution, but the way it used international law was not highly

criticized. In fact, the Courts opinion in Glucksbergwas joined by both Justice Scalia

and Justice Thomas, whose originalist methodologies tend to favor strict limitations on

the use of international sources. Perhaps this is because, like the expository use of

international law, this empirical method of borrowing from foreign sources does not

borrow law. Rather it borrows evidence in the form of real-world outcomes of legislative

11 521 U.S. 702 (1997).12Glucksberg, 521 U.S. at 785.

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enactments attempted in other countries. The Court in Glucksbergwas using

international experience not to define the height of the hurdle placed by the Constitution,

but to determine whether the state had cleared it. This indirect use of international law

may be acceptable to Court because it is not constitutional interpretation in the purest

sense of defining the meaning of the text. Rather, it is finding facts and applying them to

the already interpreted standard found in the Constitution. The Justices are not using

international law to answer the question: What does due process mean? Rather, they

have already determined what due process requires in this situation and are merely using

international law to determine whether those requirements are met.

While the evidence seeking role of international law may be more troubling than

the comparison seeking role because the Court is actually attempting to answer a question

rather than merely explain itself, the practice is fairly easily defended. The Court is not

looking to international law to determine what the Constitution says. It would be an

overstatement of the holding of Glucksberg to claim that the Court has said that due to

the results of the regulatory experiments in the Netherlands, the Due Process Clause of

the Fourteenth Amendment does not protect citizens from a government ban of voluntary

euthanasia. Rather, the holding was case-specific and, more importantly, evidence

specific. A more proper reading would claim that the Due Process clause requires that

the government act reasonably in legislating toward a legitimate governmental interest.

In this case, the state asserted that banning rather than regulating voluntary euthanasia

was reasonable because it didnt want to create certain ancillary problems via regulation.

Thus, the Court looked to the Netherlands to determine whether the states fears of severe

ancillary problems were realistic fears such that avoiding them was a legitimate concern.

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The court found that in this case, given the similarities to the situation in the Netherlands,

a concern for similar outcomes was a reasonable concern and an interest in acting a

manner which avoided those outcomes was a legitimate state interest. In short, all of the

reasoning involving the experience of the Netherlands took place at a level below the

question of the meaning of the textual phrase Due Process. While perhaps giving more

authority to international sources than the expository use, the empirical use of such

sources is not especially troubling even to originalists, as the Court is borrowing not law

or principles, but factual evidence of outcomes.

3. Substantive

While there is general agreement that both the expository and empirical uses of

international law by the Supreme Court are justified, there is no such agreement

regarding the substantive use. It is this method which has led to the controversy within

the Court and involving the legislature. The first two uses of international sources are not

used directly to influence the interpretation of the Constitution. The expository merely

looks to foreign laws to play a communicative role similar to hypothetical examples in a

lecture. The empirical looks for evidence of outcomes that are unlikely to be affected by

nationality or location. The substantive use of international law is far more direct and

powerful. It uses international sources directly in order to determine what an ambiguous

provision of the Constitution should mean.

Before attempting to provide justification for this use of international law as a tool

of constitutional interpretation, it may be helpful to first provide the clearest example

currently available of this use by the Court. This is found in theRoper v. Simmons.13

13 125 S. Ct. 1183 (2005). Professor Larsens article was written prior to the Courts decision inRoper.

While her discussion of the substantive use of international law focuses onLawrence v. Texas, her critiques

of the methodology apply equally, if not more strongly, to the majority opinion inRoper.

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Here the Court was asked to determine whether the Eighth Amendments proscription of

cruel and unusual punishment prohibited the execution of a person convicted of a murder

he committed while under the age of eighteen. Initially, the Court set forth the applicable

legal standard, stating that the Constitution must be interpreted according to its text, by

considering history, tradition, and precedent, and with due regard for its purpose and

function in the constitutional design. To implement this framework this Court has

established the propriety and affirmed the necessity of referring to the evolving

standards of decency that mark the progress of a maturing society to determine which

punishments are so disproportionate as to be cruel and unusual.

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To determine the current standard of decency the Court looked first to the

domestic practice of the states, noting that the national trend involved movement away

from the execution of juveniles. The Court then went on to engage in a lengthy and

searching examination of international law and study of the practices of foreign nations

on the topic. Unlike many prior cases in which international law had been obliquely

referenced or merely footnoted, an entire section of Justice Kennedys majority opinion

in Roper was devoted to the international element of the evolving standards of decency.

In clearly the strongest and most direct use of international law and consensus by the

Supreme Court, Justice Kennedy begins Section IV of the opinion by outlining precedent

showing the propriety of looking to other nations to bolster constitutional principles,

especially when interpreting the Eighth Amendment.15 He then goes on to cite both

respected documentary international law and the ongoing practice of nations to

demonstrate a high level of agreement among nations that the execution of juveniles is an

14 Roper, 125 S. Ct. at 1184. (quoting Trop v. Dulles, 356 U.S. 86, 100-101 (1958).15Roper, 125 S. Ct. at 1198.

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unacceptable form of governmental behavior.16

II. DEFINING AND DEFENDING THE SUBSTANTIVE USE OF

INTERNATIONAL LAW

A. The Importance of Consensus

In attempting to unpack and evaluate the validity of the majoritys methodology

inRoper, it is first important to note the vital role played by consensus. Many critics

have asserted that international law is illegitimate as an interpretive principle because it

makes the law of another nation binding on Americans without their consent.17 This is

simply not what the majority has done, however. Rather, the Court has looked for a

consensus of principle among the nations of the world.

The difference here is extremely important. While it would be illegitimate for any

judge to impose upon Americans a law that has not been passed via the appropriate,

constitutionally mandated legislative process, it is not impermissible for a judge to resort

to principles in attempting to interpret the Constitution. In fact, it is inescapable.18 Even

originalists who assert that their methodology precludes substantive principles from

affecting their decisions cannot escape the fact that their very choice of methodology

involves a resort to values.

B. A World of Competing Principles

Thus the relevant question becomes: How can one determine which values or

principles may be justifiably used in constitutional interpretation? Academic literature is

16Roper, 125 S. Ct. at 119917

See Bork at 135-139, andRoper, 125 S. Ct. at 1225 (Scalia, dissenting.) (Though the views of our own

citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-

called international community take center stage.)18 See Dworkin, Ronald. A Matter of Principle. (ch. 2), Cambridge, MA: Harvard Univ. Press, 1985 at 69.

(The flight from substance must end in substance.); (the Court should made decisions of principle

rather than policy).

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filled with commentators arguing for and against various foundational interpretive

principles, but no consensus has emerged. Originalists assert that judges should be

constrained by the original intentions of the founders, though they define original

intentions and founders in different manners that would lead to different results and

disagree over the role of tradition.19 John Hart Ely argues that judges should be limited to

interpreting the Constitution as a procedural document designed to facilitate the

functioning of democracy.20 Ronald Dworkin rejects both of these attempts to find a

value-neutral principle, asserting that there is no acceptable method of constraining the

substantive values and principles of judges and that to some extent the American system

of judicial review must allow, to some extent, for the rule of philosopher-judges. 21

In large part Dworkins criticism of the attempt to escape personal values is apt.

There seems to be no way to both embrace a system in which human judges with

particular beliefs and experiences are required to be the final arbiters of the meaning of

the Constitution in accordance with the theory of judicial review set forth in Marbury v.

Madison and to strip substantive values from that system. This is the underlying cause of

the countermajoritarian difficulty famously discussed by Alexander Bickel.22 The

American system of jurisprudence attempts to simultaneously allow majoritarian rule via

the legislative process and allow unelected judges to strike down the results of that

majoritarian process. To the extent that a judges reasons for striking down a law are

19 Bork, Robert H. The Tempting of America: The Political Seduction of the Law. (ch. 6). New York:

Macmillan Free Press, 1990 at 153; Farber, Daniel A. and Suzanna Sherry. Desperately Seeking Certainty:

The Misguided Quest for Constitutional Foundations. Chicago, IL: University of Chicago Press, 2002 at

10-12, 29.20

See generally Ely, John Hart. Democracy and Distruct: A Theory of Judicial Review. Cambridge, MA:

Harvard Univ. Press, 1980.21 Dworkin at 34, 71.22 Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2d

Ed. (ch. 1) New Haven, CT: Yale Univ. Press, 1986.

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based upon his or her subjective, substantive beliefs, there is a legitimate problem. This

is equally true whether those beliefs are imposed directly or through a methodology such

as originalism which is the product of the judges substantive beliefs.

C. A Procedural Mechanism for Finding Principles

The majority of the debate over the choice of the appropriate judicial decisional

principle has focused on the ability of the particular principle to solve the

countermajoritarian dilemma. It has been outcome based, with each proponent asserting

that his or her principle is more successful at constraining judicial caprice.

Unfortunately, this provides no solution. Because the countermajoritarian difficulty is

such a multi-faceted problem in which the reduction of difficulty in one area leads to a

corresponding increase in difficulty in another, there is no way of determining an

objectively best result. Subjective values are not only incorporated into the principles

debated, but also into the standards of evaluation. Thus no resolution can be reached in

this manner. Because there is no objective benchmark, each proponent of his or her

subjectively favored principle comes to believe that that principle leads to the best

solution.

Given these extremely complicated problems of subjectivity, it is easy to see why

originalists attempt to find an objective benchmark. If nothing else, it provides

simplicity. The problem with originalism is not its attempt to find objectivity, but the

objective benchmark it has chosen. Originalists have chosen to bind themselves to an

understanding of the text held by members of the founding generation. While this

anachronistically situated core principle may be objective, its selection by modern-day

jurists is based on subjective values, and in operation those subjective values will still

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determine the outcomes of cases. Because these initial values are still tied to outcomes

this chronological benchmark, while theoretically objective, renders originalism a mere

veil over judicial values rather than a meaningful constraint.

The originalists attempts to find an objective standard is a step in the right

direction, however. They have simply looked to the wrong standard. If judges could bind

themselves to a procedure that was capable of selecting the required core principle in a

given case regardless of that judges own values, the problem might be avoided. The

choice to bind oneself to the procedure might be just as value-laden as the originalists

decision to be bound to the originalist methodology, but because the judge bound to the

procedure could not know what principle would be its outcome, the chain of value-laden

decision-making would be broken by the operation of the procedure.23

International consensus could provide this benchmark procedure to be used to

locate principles separated from judicial values. If judges bound to uphold the

Constitution also chose to account for international consensus in their judgments, they

would be constrained by a principle separated from their own substantive beliefs.

Admittedly there may be times when an international consensus does not exist or cannot

be determined, but when one does it provides an external principle for decision-making.

Because this principle would have arisen via the consensus of the largest conceivable

majority, it would be procedurally justified via democratic principles. Thus a judge

operating according to a principle found in this manner would be imposing not his own

countermajoritarian values, but the views of the largest possible democratic majority.

D. International Consensus and the Countermajoritarian Difficulty

23 The rationale here is similar to that of the intervening cause in tort law.

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As previously stated, there is no right answer to the countermajoritarian

difficulty. But as it is one of the primary challenges to be addressed by any tool designed

to constrain the judicial imposition of values, it is important to honestly evaluate ability

of international consensus-derived principles to make a meaningful contribution.

The first issue that comes to mind when attempting to address the

countermajoritarian difficulty is the simple numerical problem. A group of nine judges

cannot, consistent with traditional democratic principles, override the will of the entire

nation. It is this numerical problem that international consensus addresses most directly.

When the principles used in constitutional interpretation are ratified by the international

majority, they can no longer sensibly be termed countermajoritarian. If the numerical

move from millions to nine is the problem, then the opposite move from nine to billions

is a solution. By resorting to the principles of the largest available majority, judges have

democratic, majoritarian justification for utilizing those values to interpret the

Constitution.

Of course, as previously recognized, the countermajoritarian difficulty far more

complex than a simple equation and cannot be completely solved by numerical means.

This solution does admittedly create new difficulties, just like every other proposed

solution. In effect, it adds a third element to the two-piece problem initially described by

Bickel. Instead of simply a majoritian legislative enactment and a countermajoritarian

judge, this system incorporates a second, larger majority. While this larger majority is

perfectly consistent with purely theoretical democratic values, critics will charge that

because this additional group was unaccounted for in the Constitution, it is at best

irrelevant and at worst illegitimate. However these critics word their objectionwhether

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they reference the social contract function of the Constitution, sovereignty of the

domestic majority, or deviation from the original functionthe objection is

fundamentally the same: the addition of a larger majority is not permissible under the

Constitution.

This objection cannot be ignored, but neither can the advantage of resolving the

numerical dilemma. Again, the purpose here is not to convince originalists that they

should begin seeking principles via international consensus. Rather, it is to show that

every methodology involves value-laden choices and has both advantages and

disadvantages when applied to the countermajoritarian problem. An originalist could not,

consistent with his own values, resort to the use of international consensus. His concern

for the original social contract function of the Constitution overrides his commitment to

purely democratic ideals. It is just that commitment to the original function that earns

him the label originalist. But another judge could reasonably believe that the

Constitutions demand for functional democratic, majoritarian values as a principle

outweighs the interest in maintaining the form of the original social contract. That judge

would be just as justified in choosing international consensus as an interpretive tool as the

originalist is in choosing his methodology.

Originalists will object to internationalism. The values that lead one to choose

originalism are in conflict with those that lead one to choose internationalism. The

fundamental difference is that binding oneself to an originalist methodology binds one

from beginning to end to a substantive philosophy in a way that an internationalists

binding oneself to the procedure of principle-seeking via international consensus does

not. Thus there will be times when the two sides will agree on the merits of a given case.

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There is absolutely nothing that prevents international consensus from affirming a

principle that is substantively identical to the originalist position. When this occurs a

faithful internationalist judge should be compelled to follow that substantively originalist

position even though it likely differs from his own. Legitimacy for the internationalist

not found by attempting to determine what is right. Rather, a principle is legitimate

because it is chosen by the largest available majority. Because everyone is bound by his

or her own values and principles, this is the closest thing to an objective interpretive

principle that is available.

E. RevisitingRoper

Initially,Roperwas presented to exemplify a method using of international law

that Professor Larsen deemed unjustifiable. I have argued that in fact this method is

justifiable, and I would now like to revisitRoperto show how the majority opinion in

Roperto demonstrate this concretely.

Justice Kennedy and theRopermajority did not impose their own values on the

American people. Nor did they allow foreigners to dictate the meaning of the

constitution. Rather, in attempting to fulfill their duty to interpret the Constitution, they

first had to determine what principles should be invoked. To do this they looked not to

their own personal values, but to the procedurally justified values of national and

international consensus. Upon finding that there was agreement between international

and domestic consensus, the Court could legitimately strike down the states policy of

juvenile execution. The power of the consensus of the larger majority, here in the form

of both the national and international majority, to strike down a contrary policy of a

smaller majority (here, the majority of people within a single state) was vindicated.24

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F. The Rehnquist Courts Uses of International Law Have Been Legitimate.

Despite the objections of numerous politicians offended by the use of

international law in constitutional decision-making, none of the uses of international law

undertaken by the Rehnquist Court can be shown to be illegitimate. The expository use

of international law gives it no more power than a hypothetical situation used for

illustrative purposes, and the evidence seeking role of international law uses international

facts more than international law, and thus draws no strong objections.

The principle seeking role of international law is more troubling to many, as it

seems to some like an attempt to steal sovereignty from Americans and allow foreigners

to dictate the laws of the United States. While there may be some uses of international

law that could do this, the Rehnquist Court has given no such power to international

law.25 Rather, the Court has engaged in a manner of interpretation that allows, when the

wording of a constitutional provision is unclear, for the reference to international

consensus in the attempt to ensure that fundamental principle used in interpretation of the

text is not in conflict with the values expressed by the world at large. Because it

expresses the wishes of the largest possible majority, international consensus is the most

legitimate means of attempting to find a root principle for those judges whose

methodology requires one.

25 Thus far, the Court has only used international consensus in a confirmatory role. Only wheninternational consensus has agreed with national consensus has it been invoked to justify a result. Whether

there are circumstances in which it could do otherwise is an open question, though in her dissent inRoper

Justice OConnor concludes that it could not. In her view there was a solid international consensus against

juvenile execution, but because she disagreed with the majoritys finding that there was a national

consensus, she dissented. Thus, for her the lack of a national consensus could not be overcome by solid

international consensus. In her view the confirmatory role of international law represents its outer limit.

See Roper, 125 S. Ct at 1215. (OConnor dissenting)

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In any event the outspoken critics who have facetiously suggested impalings,

impeachments, and originalist resolutions have vastly overstated their case. While the

members of the Rehnquist Court may have substantial disagreements over the legitimate

uses of international law, the Court as a whole has not engaged in a massive movement

toward internationalization as critics like to suggest. At this point the Court has limited

its use of international modes of interpretation to the methods shown in Professor

Larsens typology. Whatever ones personal opinion of the legitimacy of international

law, it is difficult to understand how a rational person could invoke impaling over

granting international law the authority to act as a hypothetical, a piece of factual

evidence, or a confirmation of the views of a domestic majority.

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III. INSTRUCTIONS FOR THE PRUDENT USE OF INTERNATIONAL LAW AS

A PRINCIPLE SEEKING TOOL

More subtle than the attack on the legitimacy of international law as an

interpretive tool has been an attack on the ability of the courts to utilize such a tool

properly in practice. There is a substantial fear that international law will be invoked in a

manipulative orad hoc manner such that international law will be prominent when it

supports the judges decision, but either manipulated or ignored when it does not.

These methodological concerns are valid, as even a legitimate tool can be used

dangerously to subvert its purpose. The haphazard, selective, or poorly executed use of

international law accomplishes nothing more than muddying the constitutional waters and

undermining confidence in judicial decision-making, while reifying the belief that all

resort to international consensus in interpretation is illegitimate.26 It is therefore vital that

the use of international law be properly constrained such that it may only be used

legitimately. Prudential rules are necessary to ensure that this tool is not abused and

undermined. The law requires some measure of consistency and clarity to remain fairly

applied. Thus, to combat the haphazard, selective, and poorly researched use of

international law in the courts, some instructions for the use of international consensus

are needed.

A. The Largest Reasonable Majority Principle

The justification of the principle seeking use of international law as stems directly

from its resort to the largest majority. If this condition is not met in application, the

26 See especially Alford, Roger P. Misusing International Sources to Interpret the Constitution. 98

American Journal of International Law 57, (January 2004).

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justification fails. Of course, there is no way to poll every person or every country on

every topic of interest, but it is possible to gather evidence from as many countries as

possible. While in the comparison seeking or evidence seeking roles it may be

permissible to look to only a single countrys practice, this is not true in the principle

seeking. Using the largest majority provides a procedural method of choosing among

substantive principles only if it is done fairly. If judges manipulate the tool by

ideological gerrymandering it merely acts as a veil to hide the countermajoritarian

judicial will.

There are numerous sources of international law that could be used to find this

broad consensus, and there will inevitably be disagreements in each case as to the precise

definition of the largest reasonable majority. Yet while there is no absolute hierarchy,

Justice Kennedys opinion inRopercould provide an illustrative example of the proper

scope of reference to international law. In that case Kennedy refers to both documentary

international law and widespread practice. He first refers to the International Covenant

on Civil and Political Rights, which is one of the most widely accepted documents in the

field of international law.27 He then looks to the practice of all nations and specifically

enumerates those which have policies contradicting the majority principle.

It is possible to extract several best-practices for the proper use of international

law from the majority opinion inRoper. First, international documents are important.

Those documents which have been affirmed in principle by the vast majority of nations

should be looked to first as examples of majority-approved decisional principles.

Examples of such documents would include the Charter of the United Nations, the

27 According to the United Nations, the ICCPR currently has 67 signatories and 154 parties. Text and

information available at: http://www.ohchr.org/english/countries/ratification/4.htm.

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Universal Declaration on Human Rights, and the aforementioned International Covenant

on Civil and Political Rights. The criterion upon which resort to these documents is

based is not their content. Rather, it is their widespread acceptance by the vast majority

of nations.

As a second form of evidence of international consensus the court should again

follow the lead of theRopermajority by looking to the practices of all nations. While

there is a tendency to prefer to look to civilized nations nations that share a more

common heritage with the United States, such a limitation undermines the credibility of

the result. By eliminating some countries in a value-laden manner, a judge effectively

destroys the procedural legitimacy that comes from resort the international majority. In

Roperthe majority opinion explains how it goes about finding the international consensus

and explicitly identifies those countries which do not share the majority view. Thus there

is substantial transparency in the principle seeking, and the court avoids to the greatest

extent possible the charge of ideological gerrymandering.

B. The Two-Way Street Principle

Much of the concern currently expressed regarding the use of international

consensus comes from the political right. Much of the criticism involves valid critiques

on methodology by those who prefer originalism, but because the cases in which

international law has been cited most strongly have vindicated traditionally liberal causes,

there is also great concern that international law will be used as a means of judicially

liberalizing American culture.28

28 See Bork, Coercing Virtue at 1-11.

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International law cannot be used for this end if it is to be legitimate. In order for

international consensus to be meaningful and helpful judges must attempt to use it even-

handedly. While it is likely that given the current political climate in the United States,

judges associated with the political left will be more receptive to the use of international

law, that does not mean that it is a leftist tool. To be legitimate it must be a procedural

tool driven by evidence rather than ideology. The use of international law cannot

maintain its legitimacy if it becomes a one-way street by which a particular value is

systemically read into the Constitution. International law is to be a constraint on judges,

not a new tool they may use to further their substantive beliefs. International consensus

will not always provide the answer a judge hopes to find. If this is the case, the judge

cannot merely act as if it did. An internationalist judge should either defer to the

international consensus or provide a compelling reason for departure from it. In other

cases, there will simply be no consensus. While the temptation may be strong to

overstate the case for ones favored interpretation in such instances, this too would be

illegitimate. Judges and lawyers must be held to standards of honesty and substantial

transparency when invoking the international majority.

C. Prudential Categorical Exemptions

There are some parts of the Constitution that are not amenable to interpretation

with regard to international consensus. Some provisions are simply too intrinsically

American to be interpreted in such a manner. The first three Articles of the Constitution,

for example, should not be interpreted in light of international consensus because they

deal entirely with the structure of the domestic government. To allow such provisions to

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CONCLUSION

As used by the Rehnquist Court, international law is both legitimate both in

theory and in application. It is merely one of many tools available to judges that is

neither compelled nor prohibited by the Constitution. Because of the current political

climate in the United States, certain politicians have chosen to mischaracterize the nature

of the tool and to overstate its power in an attempt to eliminate international

considerations from constitutional decision-making. Such legislative interventions into

the authority of the judiciary are ill-advised. While constraining the power of individual

judges to impose their wills on society may be a good thing, allowing legislative

intervention into the internal workings of the Court or the mind of a judge is not.

As this paper has demonstrated, the minor trend toward internationalization by the

Rehnquist Court cannot reasonably be characterized as judicial tyranny. If anything truly

surprised me in developing this paper it was the relative impotence of international means

of interpretation by the Rehnquist Court. Clearly the sky, or in this case the Constitution,

is not falling. International law is a legitimate tool being applied carefully by the

Supreme Court. While my inquiry did no go to the application of the tool by the lower

federal courts, I am convinced that if international law continues to be used by the

Supreme Court, lower courts will be quite capable of discerning instructions and best-

practices and applying them carefully.

No tool can convert judging to arithmetic. While we may not have to accept the

Dworkinian philosopher-judge, we must allow judges the freedom to do their jobs in

accordance with their own principles so long as they are capable of arguing that those

principles chosen are consistent with their duty to interpret the Constitution.

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International law is one legitimate method of deriving such principles, and as such it

should not be excluded from the judicial toolkit.

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Works Referenced

Court Documents:

Washington v. Glucksberg. 521 U.S. 702 (1997).

Raines v. Byrd. 521 U.S. 811 (1997).

Atkins v. Virginia. 536 U.S. 304 (2002).

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

Roper v. Simmons. 125 S. Ct. 1183 (2005).

Legislative Documents:

H. Res. 568, 108th Cong. (2004) (proposed by Rep. Feeney, R-FL).

Books and Articles:

Ackerman, Bruce A. The Storrs Lectures: Discovering the Constitution: Lecture One:

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Alford, Roger P. Misusing International Sources to Interpret the Constitution. 98

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Defending the Rehnquist Court's Uses of International Law as an Interpretive Tool

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