Constitutional law and transnational comparisons: the Youngstown decision and American exceptionalism.(International Rule of Law)

Publication: Harvard Journal of Law & Public Policy

Publication Date: 22-SEP-06

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In his dissent in Roper v. Simmons, Justice Antonin Scalia bemoaned the "brave new meaning" that the Court had given the Due Process and Equal Protection Clauses and, by implication, the Eighth Amendment. (1) One of his principal complaints about the majority opinion, holding that the Eighth Amendment prohibits imposition of the death penalty on a person below the age of 18 at the time of an offense, was its reliance on foreign and international law to reinforce its conclusion that such punishment was "cruel and unusual." Justice Scalia's reference to "brave new meaning," implicitly invoking the negative utopia of Aldous Huxley's famous novel, (2) is of a piece with his position that constitutions are designed to "obstruct modernity," (3) that the "new" is irrelevant to interpreting the written constitutional text. Huxley's sarcastic title for his dystopic novel was, however, drawn from a more ambiguous reference in Shakespeare's The Tempest. (4) Brought up on a deserted island with only her father and his servant, Miranda falls in love with Ferdinand, who is washed ashore by a terrible storm created by her father; upon meeting others from Ferdinand's ship also washed ashore, she exclaims, "Oh brave new world, that hath such creatures in it!" (5) Miranda's statement can be read as one of exultation and celebration of the entrance of foreigners onto her isolated island, even as those with more knowledge can see the darker side of some of these strangers.

Whether one is inclined to exult or bemoan the occasional references to foreign or international law found in recent Supreme Court cases, one thing is clear: references to foreign or international law in the Supreme Court's constitutional jurisprudence are not new. Rather than being a brave or bold departure from established norms of interpretation that exclude their use, references to foreign or international law have played, episodically, a small role in many of the Court's most important opinions over time--sometimes being used to support propositions in dissent in cases subsequently overcome by constitutional amendment or different doctrine, (6) sometimes being cited to support holdings that would be eschewed or qualified today. (7) Although objections to the consideration of foreign or international law have been raised on grounds of national sovereignty, democracy, and the need to cabin judicial discretion, (8) none of these concerns should rule out all such references, whose long history is the starting point for traditionalist analysis of their appropriate use in interpretation.

This essay is an expanded version of a talk I gave at an excellent panel discussion sponsored by the Federalist Society at Columbia University Law School in February 2006 on "Foreign and International Law Sources in Domestic Constitutional Interpretation." Part I argues that the use of non-binding foreign law in constitutional jurisprudence is not a novel form of judicial activism but, rather, a part of the interpretive traditions of the Court evident in many of its most important decisions. Use of foreign or international law is, however, demanding: it is easy to err in our understandings of the foreign; and many U.S. constitutionalists have not been trained in international or comparative law. (9) Part II tries to identify some differences between foreign and international law that may be relevant to their use in domestic constitutional interpretation. Finally, Part III responds briefly to the argument made by Professor Steven Calabresi in his comments on the panel and in a paper published elsewhere that American exceptionalism is a reason not to consider foreign and international experience. (10) To the contrary, I suggest that, if the United States is to be a "City on a Hill," a leader in the protection of human liberty and freedom (a goal that at times seems increasingly distant), (11) we must understand the contours of the terrain around us.

I. FOREIGN LAW IN THE COURT'S CONSTITUTIONAL JURISPRUDENCE: THE MISSING SEGMENT OF JUSTICE JACKSON'S YOUNGSTOWN CONCURRENCE

Notwithstanding the furor over the Court's reliance on foreign and international law in Roper and Atkins v. Virginia, (12) the history of constitutional adjudication in the U.S. Supreme Court reveals episodic references to foreign law, (13) often relating to the constitutionality of punishments or penalties. In January 1867, for example, the Court referred to both a contemporary French code and older English law in deciding whether a Missouri state law imposed a "punishment" in violation of the Constitution's Article I, Section 10 ban on ex post facto laws or bills of attainder. (14) In his opinion, Justice Field discussed English law at some length and also wrote that:

In France, deprivation or suspension of civil rights, or of some of them, and among these of the right of voting, of eligibility to office, of taking part in family councils, of being guardian or trustee, of bearing arms, and of teaching or being employed in a school or seminary of learning, are punishments prescribed by her code. (15)

Foreign practice was relied on to support the Court's conclusion that the Missouri law, though characterized otherwise by the state, was sufficiently punitive to be in the nature of an ex post facto law or bill of attainder and thus prohibited by the Constitution.

One of the Court's earliest decisions on the merits of an Eighth Amendment issue also provides an example of reliance on foreign law, this time to sustain rather than to invalidate a law. In Wilkerson v. Utah, the Court in 1879 rejected a challenge to the particular method by which a death sentence was carried out, holding that death by shooting did not constitute "cruel and unusual punishment" of the sort prescribed by the Eighth Amendment. (16) In so doing, the Court referred to the "[c]orresponding rules [that] prevail in other countries," noting in particular that England permitted death by shooting for murder and other crimes. (17) In Eighth Amendment cases challenging a particular kind of punishment as cruel and unusual or challenging a particular punishment for a particular crime as cruel and unusual, (18) it is not new for the Court and its members to refer to other countries' legal practices as one source of information relevant to the determination of whether the punishment passes constitutional muster. The Court has done so in at least one case treating the foreign origin of a punishment as bearing on its unacceptability in the United States, (19) and in other cases referring to the practices of other "civilized nations" to support the Court's conclusion that a particular punishment (for example, statelessness) (20) or the use of a particular penalty for a particular crime (for example, the death penalty for rape of an adult) (21) was constitutionally prohibited.

This line of decisions extends from the late nineteenth century through 1988. (22) In 1989, Justice Scalia, writing for the Court in Stanford v. Kentucky, (23) sought to cabin more tightly consideration of foreign law in Eighth Amendment cases, along lines he had proposed in a dissenting opinion the year before. (24) The attempt, however, was apparently short-lived--not surprising in light of the long prior history of the Court's considering foreign practice in Eighth Amendment cases. Throughout the 1990s, other Justices on occasion invoked foreign law in dissenting from denials of certiorari. (25) By 2002 the Court had returned to its prior practice of considering foreign and international law not as a primary factor but as a relevant consideration in resolving Eighth Amendment challenges and without explicit regard to the standard set forth in Stanford. (26)

Reference to foreign and international law has not been limited either to decisions of the earliest period in our history or to cases involving Eighth Amendment issues. Indeed, many American lawyers (and perhaps even some law professors) are unfamiliar with important opinions on the Court's history that included discussion of foreign law, perhaps because of the way in which cases are edited for inclusion in casebooks. A powerful example is found in Justice Robert Jackson's deservedly famous concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer. (27) This opinion is excerpted in each of the twelve constitutional law casebooks that I checked, including those regarded as leading books in the field. (28) With few exceptions, (29) these excerpts omitted the discussion of foreign constitutional law that Justice Jackson introduced in the following terms:

I do not think we rightfully may so amend [our forefathers'] work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. Their experience with emergency powers may not be irrelevant to the argument here.... (30)

In the two-page discussion that followed, Justice Jackson examined German, French, and British history and constitutional practice in the period leading up to and during World War II. First, he described how the Weimar Constitution in Germany--though framed, as Justice Jackson noted, to "secure her liberties in the Western tradition'--permitted the President of the Republic, without the concurrence of the national legislature, to declare a state of emergency in which all individual rights could be temporarily suspended. (31) That power, as Justice Jackson described it, "proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored." (32)

Second, Justice Jackson explained that the law of the Third French Republic in the period before World War II provided for a very different kind of emergency known as the "state of siege." (33) As Jackson described the "state of siege" under the Third French Republic:

It differed from the German emergency dictatorship, particularly in that emergency powers could not be assumed at will by the Executive but could only be granted as a parliamentary measure. And it did not, as in Germany, result in a suspension or abrogation of law but was a legal institution governed by special legal rules and terminable by parliamentary authority. (34)

These features of parliamentary involvement in the declaration of a "state of siege" and of the parliament's retaining the power to terminate the state of siege were analogous to features Justice Jackson stressed in describing Great Britain's constitutional practice.

Great Britain, Justice Jackson continued, had fought both world wars under what he called a "temporary dictatorship created by legislation."35 As Parliament is not bound by written constitutional limitations, he wrote, "it established a crisis government simply by delegation to its Ministers of a larger measure than usual of its own unlimited power, which is exercised under its supervision by Ministers whom it may dismiss." (36) Quoting Winston Churchill, Justice Jackson noted that Britain's war-time crisis government "has been called the 'high-water mark in the voluntary surrender of liberty,' but, as Churchill put it, 'Parliament stands custodian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our perseverance." (37) Thus, Justice Jackson concluded, "parliamentary control made emergency powers compatible with freedom." (38)

Justice Jackson did not explain his choice of countries for comparison. One possibility is that these were the three foreign governments studied in the Clinton Rossiter book, Constitutional Dictatorships, on which Justice Jackson relied. Thus, knowledge about their constitutional systems was in a certain sense accessible, a factor that relates, but only indirectly and somewhat fortuitously, to larger questions of comparability. Although today one might think that the criteria for selective reliance on these particular countries' legal traditions would need explantion, perhaps Justice Jackson felt the relevance of these particular comparisons would be obvious to his audience. Beyond the "availability" criterion, (39) Germany and France had written constitutions, as did the United States, and the unwritten British "constitution" had long been the subject of commentary and discussion. Connections between these countries and the United States existed in demographic as well as legal terms: each of the three countries was located in Europe and had been a source of migration to the United States; the legal traditions of Britain had been of central importance in drafting the U.S. Constitution; and earlier Supreme Court decisions had alluded to the laws of both Britain and France in resolving other constitutional questions. (40) These connections might be indicative of a greater degree of background knowledge of their legal systems and historical contexts. Moreover, Germany's descent from an apparently "civilized," liberal democracy to a genocidal war-mongering imperial state was one of the stunning transformations of its time, and one of which Justice Jackson had considerable knowledge from his work as prosecutor at the Nuremberg war-crimes tribunal.

Whatever the basis for selection, the conclusion that Justice Jackson drew from his comparison of emergency powers under these three countries was as follows:

This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the "inherent powers" formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience. (41)

Although the dissent did not explicitly respond to this argument, it appeared implicitly to have accepted Justice Jackson's claim that emergency powers must be subject to control "elsewhere than in the Executive who exercises them." I say this because the dissent's implicit response to the concern expressed by Justice Jackson (and others) about European dictatorships, was to argue that President Truman's action posed no risk of dictatorship because he was acting to implement congressional statutes, had transmitted his order to Congress, and had plainly indicated it was subject...

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