Transnational Challenges to Constitutional Law: Convergence, Resistance, Engagement
| Author | Vicki C Jackson |
| Published date | 01 June 2007 |
| Date | 01 June 2007 |
| DOI | http://doi.org/10.22145/flr.35.2.1 |
| Subject Matter | Article |
TRANSNATIONAL CHALLENGES TO CONSTITUTIONAL
LAW: CONVERGENCE, RESISTANCE, ENGAGEMENT
Vicki C Jackson*
The interaction between national constitutions and transnational sources of law
(foreign and international) has generated quite an active disagreement in the United
States about what these bodies of law have to do with each other. This paper will
explore these debates and the postures towards transnational law and its role in
domestic constitutional adjudication which they express. It will identify three postures
— of convergence, of resistance, and of engagement — that are manifest in the
opinions of different justices of important high courts around the world, and will
argue for a posture of 'engagement' at least in established constitutional systems like
that of the United States.
There are, of course, different kinds of debates in different countries. In some
countries, the debate is not about whether foreign and international law may be
considered, but how and when, and with what weight. But in the United States, the
debate for many is still over whether contemporary foreign and international law may
be considered in constitutional interpretation.
There is a certain asymmetry in this discussion in the United States. Opponents of
using foreign or international law in constitutional adjudication are impassioned.
Justice Scalia memorably wrote in one recent dissent that the American people's views
were, 'thankfully', not always those of the Europeans.1 A recent Harvard Law Review
Foreword, written by Judge Richard Posner,2 fiercely attacked the Supreme Court's
reference to foreign and international law in Roper v Simmons,3 a 2005 decision holding
unconstitutional the juvenile death penalty. In the United States Congress, legislation
has been introduced to prohibit the Court from referring to foreign or international
law, except for English law relevant to the original intent of the Framers.4
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* Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law
Center. This paper was given as the Geoffrey Sawer Lecture, Australia National University,
Canberra, on 2 November 2006. The author thanks the Australian National University and
Professor Kim Rubenstein for the generous invitation to deliver the lecture and thanks
Philippe Danielides, Eric Cochran, Andrew Eberle and Loretta Wiatr for their assistance in
checking citations.
1 Atkins v Virginia, 536 US 304, 348 (2002) (Scalia J, dissenting).
2 Richard Posner, 'The Supreme Court, 2004 Term — Foreword: A Political Court' (2005) 119
Harvard Law Review 31.
3 543 US 551 (2005) ('Roper').
4 See, eg, American Justice for American Citizens Act, HR 4118, 108th Cong 2nd Sess (2004) s 3:
stating that no federal court may 'employ the constitution, laws, … policies, or judicial
162 Federal Law Review Volume 35
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Opponents raise several kinds of legal objections: First, for 'originalists', who favour
interpreting the Constitution in accord with its meaning at the time of enactment,
contemporary transnational sources are simply irrelevant. Second, from a formalist
perspective, there is concern that considering foreign law would unduly expand the
discretion of judges. Third, from a professional perspective, US-trained judges and
lawyers are said to lack expertise in foreign and international law sufficient to make
appropriate choices, among a wealth of transnational law, of what to use. More
broadly, objections from democracy, popular sovereignty and American
'exceptionalism' are asserted, the claim being that anything not 'made in America' is
irrelevant, illegitimate, or even inconsistent with a kind of constitutional patriotism.5
Defenders of the use of foreign and international law are less passionate, for they
tend to see it as merely one of many factors or considerations, and not a central one at
that. Whether a judge is a 'purposivist', committed to interpreting the Constitution to
advance one or more large-scale and overarching purposes attributed to the document
(for example, 'active liberty'),6 or a common law constitutionalist concerned with
continuity of decision-making within a complex matrix of precedent and other
sources,7 no Supreme Court Justice in the United States has, for example, argued in
favour of a presumption of interpreting constitutional law in accord with international
law, as Kirby J has in Australia, and reference to foreign and international law has
almost never been a dominant motif in the United States case law.8 Rather, its mild-
mannered supporters may note that references to foreign and international law have
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decisions of any international organisation or foreign state, except for the English
constitutional and common law or other sources of law relied upon by the Framers of [the
US Constitution]'; Constitution Restoration Act of 2005, HR 1070, 109th Cong 1st Sess (2005)
s 201: stating that federal courts may 'not rely upon any constitution, law, administrative
rule,…judicial decision, or any other action of any foreign state or international
organisation or agency, other than English constitutional and common law up to the time
of the adoption [of the US Constitution]' in 'interpreting and applying' the US Constitution;
Senate Res 92, 109th Cong (2005): expressing sense of the Senate that judicial interpretation
of the Constitution 'should not be based in whole or in part on judgments, laws or
pronouncements of foreign institutions' unless they 'inform an understanding of the
original meaning of the constitution'.
5 This debate has political, as well as legal, salience. At least one death threat, against
Ginsburg and O'Connor JJ, was reportedly posted on a website relating to their references
to foreign or international law. See, Ruth Bader Ginsburg, 'A Decent Respect to the
Opinions of [Human] Kind: The Value of a Comparative Perspective in Constitutional
Adjudication' (Speech delivered at the Constitutional Court of South Africa, 7 February
2006) <http://www.supremecourtus.gov/publicinfo/speeches/sp_02-07b-06.html> at 27
July 2007.
6 See Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005).
7 For academic accounts, see, eg, David Strauss, 'Common Law Constitutional Interpretation'
(1996) 63 University of Chicago Law Review 877; Richard Fallon, 'A Constructivist Coherence
Theory of Constitutional Interpretation' (1987) 100 Harvard Law Review 1189. Most Supreme
Court Justices in the United States are practitioners of this multifactorial approach. For
further discussion, see below, text accompanying n 117.
8 See also Aharon Barak, 'Comparative Law, Originalism, and the Role of a Judge in
Democracy: A Reply to Justice Scalia' (Speech delivered at the Fulbright Israel/USIEF 50th
Anniversary Symposium: International Influences on National Legal Systems, The Hebrew
University of Jerusalem, 29 January 2006) <http://www.fulbright.org.il/index.php?id
=664> at 27 July 2007.
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