Looking at the constitution through world-colored glasses: the Supreme Court's use of transnational law in constitutional adjudication.

• Author: Racusin, Philip D.

1. WHY IS THE COMPARATIVE CONSTITUTIONAL LAW INDISPENSIBLE? II. BACKGROUND A. Why is the Supreme Court Historically Allowed to Use Transnational Law in Its Decisions? B. How has the Supreme Court Used Transnational Law in the Past? C. The Supreme Court's Current Practice: Transnational Discourse III. THE ADVANTAGES, CRITICISMS, AND METHODS, OF THE SUPREME COURT'S CURRENT APPROACHES TO TRANSNATIONAL DISCOURSE A. Arguments for the Court's Transnational Discourse 1. Furthers Global Dynamism in Constitutional Interpretation 2. Advances Global Development of the Law 3. Leads to Judicial Innovation and Dispels "False Necessity" for Courts and Lawyers B. Objections to Transnational Discourse 1. Lack of Expertise in Using Transnational Law. 2. Misuses of International Law C. Considerations of Comparative Methodology 1. Originalism, or Noncomparativist Interpretative Perspective 2. Modern Functionalist Methods 3. The Dialogical Perspective 4. Genealogical Comparativism, or Ahistorical Comparativism IV. RECOMMENDATAIONS FOR THE IMPROVEMENT OF TRANSNATIONAL DIALOGUE A. Increased Education and Awareness of Transnational Comparative Law B. Engage in More Discourse with Foreign Countries. C. Encourage Transparency in Opinions D. Always Use Transnational Sources in Constitutional Interpretation with Restraint and Due Consideration V. CONCLUSION To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. (1)

1. WHY IS THE COMPARATIVE CONSTITUTIONAL LAW INDISPENSIBLE?

   In comparative constitutional law, (2) as in life, "lilt is always wise to look ahead, but difficult to look farther than you can see." (3) Common sense dictates that when facing a difficult problem, one must research solutions. In ordinary life, a person might speak with his coworkers, friends, or an experienced individual with wisdom to share. Likewise, when engaged with a difficult constitutional issue, the Supreme Court should, and frequently does, look first to American (4) and then to Anglo-law (5) for solutions.

   But what if initial efforts yield no solution to our protagonist's intractable problem, and similarly, the Supreme Court finds no answers in domestic law? He must then look to outside, experienced sources for answers, as the Supreme Court has done increasingly in recent years. (6) In recent cases, the Supreme Court has made significant inroads in recognizing the value of and drawing assistance from legal developments around the world. (7) Also increasing is "cross-pollination and dialogue between [national] jurisdictions,"(8) which results from foreign and international sources being treated as transnational law (9) that "transcend[s] [n]ational frontiers." (10)

   Can law truly transcend boundaries and should it? It has famously been written that despite relevant political differences, other countries' "experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem." (11) Several Justices take a similar position. (12) Yet, some Justices criticize this practice as contravening American views. (13) Fundamentally the issue is: "In what circumstances, if any, should the United States Supreme Court cite a decision by an international or other foreign court?" (14)

   Throughout its history, the Supreme Court has used nondomestic court decisions, international law, and customary international law in interpreting difficult constitutional issues. (15) Today, it incorporates these sources through transnational or transjudicial discourse. (16)

   The Supreme Court's use of such law has given rise to much controversy involving its appropriateness. This Comment will explore the Supreme Court's historical practices, both sides of the transnational law citation debate, comparative methodology's differing tradeoffs, and will conclude with recommendations for improving transnational discourse. The United States has exported so much constitutional law and related framework that many respected countries and intergovernmental unions now have constitution-reviewing courts dealing with situations that parallel those dealt with by the Supreme Court. The Court should heed these opinions, while taking into account relevant differences, insofar as there is useful reasoning to be gained and global standards to be gleaned. (17) Given the pressing need to expand the debate over the use of transnational law in the Court's decisions, (18) this Comment will argue, notwithstanding the Court's infrequent misuses of transnational law, that the Court should look to transnational law as persuasive when faced with a difficult constitutional issue. This Comment proposes that the Court can overcome current shortcomings in transnational citation by citing transnational sources more cautiously, using sound methodology, and fostering related education and discussion both domestically and internationally.

   Part II will explore why the Supreme Court is allowed to use transnational law in its constitutional decisions and will survey copious ways in which the Court has used transnational law in its decisions, from its earliest uses to the current transnational discourse period. Part III will explore arguments for transnational law's use in constitutional cases, its misuses and potential pitfalls, and tradeoffs between various comparative methods. Ultimately, in Part IV, the Comment will offer solutions to current deficiencies in transnational law citation by proposing increased efforts aimed at education and experience with transnational law, encouraging more transnational discourse, cautioning that Justices should engage in an examination or acknowledgement of all relevant transnational material, whether supportive or adverse to their position, and exercising restraint and consideration when applying transnational law for constitutional interpretation.

2. BACKGROUND

   1. Why is the Supreme Court Historically Allowed to Use Transnational Law in Its Decisions?

      From the time of its founding, the United States has had respect for international law. On July 4, 1776, America's thirteen colonies declared their independence from Great Britain, but "a decent respect to the opinions of mankind" required their thorough explanation. (19) The founding fathers themselves drew ideas from a wide arc of modern and historical republics. (20) Examples include the Constitution's clause to "define and punish ... Offences against the Law of Nations" (21) and the unique structure of the U.S. government's three branches. (22) Further, the Third Restatement of the Foreign Relations Law of the United States provides that its international law sources are drawn from the International Court of Justice Statute Article 38(1), which accepts judicial decisions, international conventions, and customary international law as sources. (23)

      Inasmuch as no international or foreign court is subject to the U.S. Constitution, it may seem at first blush that the comparative constitutional law, or transnational citation, approach is fundamentally flawed. There is no flaw, however, because high courts' consideration of such areas as international human rights standards creates customary international law, (24) valuable even to countries' domestic jurisprudence. Through this transjudicial exchange, a global community is created in which human rights exist on a common normative plane. (25) As this global community becomes increasingly interconnected, customary international law, tribunals' decisions worldwide, and treaties, whether ratified or not, are more likely to "be implicated by the conduct of a nation's government to its own people." (26)

      Constitutional courts like the Supreme Court recognize their decisions' potential to influence international law. (27) Consequently, a relational authority results whereby various prominent domestic courts realize an obligation to examine or acknowledge, though not necessarily to accord with, the actions of other influential courts regarding customary international law and documents embodying the human rights aspect thereof, such as the U.S. Constitution. (28) Likewise, Justice Ginsburg believes to the extent that South Africa, Canada, and the European Union operate under norms similar to that of the United States, they will face the same problems, making their jurisprudence ripe for observation. (29)

   2. How has the Supreme Court Used Transnational Law in the Past?

      When the United States was but a young country with nearly no laws of its own, it generally adopted and borrowed laws from other countries. (30) The United States frequently used international law in various cases until the approach of the twentieth century. (31)

      In Chisholm v. Georgia (32) of 1793, the Court determined an action of assumpsit could lie against the state because the U.S. decision to coexist with the nations of the earth made it subject to "the laws of nations." (33) The Court also cited the Prussian King for an equal justice proposition. (34)

      In the seminal 1824 case of Gibbons v. Ogden, (35) the Court held that the federal government's power under the Commerce Clause (36) to regulate interstate commerce was supreme over any repugnant state law. (37) In his concurrence, Justice Johnson argued that the law of nations, because it legitimized all commerce in peace time, prescribed the exclusive interstate commerce power to the federal government. (38)

      A very unfortunate use of transnational law (39) is found in the 1857 case of Dred Scott v. Sandford, in which the Supreme Court held petitioner was not a citizen and could not bring the action in a court because he...