The Death Penalty and the Debate over the U.S. Supreme Court’s Citation of Foreign and International Law (original) (raw)
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2007
This article brings much-needed precision to the debate over the Supreme Court's use of foreign and international law to interpret the Constitution. The debate has been both imprecise, ignoring the subtleties of the phenomenon at issue, and prematurely abstract, jumping to theoretical and ideological levels without first looking to establish the specifics. By focusing on the particular areas of constitutional text subjected to foreign sources and the longstanding lines of caselaw upon which the use of foreign sources builds, this article reveals that a doctrine has crystallized around the use of foreign sources. The doctrine specifies the precise uses to be made of foreign sources and the amount of authority to be bestowed upon them, and, consequently, provides a foundation upon which sensible theoretical and ideological inquiries could be based. In sum, this article tells a story that needs to be heard, exposes the constitutional traditions underlying what is commonly but wrong...
International and Foreign Law Sources: Siren Song for U.S. Judges
In this issue brief distributed by the American Constitution Society, Professor Keitner addresses the growing debate over the use of foreign and international law sources by U.S. judges engaged in constitutional adjudication. She begins by summarizing the attitudes towards international law sources exhibited by individual justices in the American legal system, noting that one's opinion about the potential relevance of foreign and international law sources... depends in no small part on one's view of the role of judges in a constitutional democracy. Professor Keitner then examines the public opposition to the citation of foreign law sources in Lawrence v. Texas and Roper v. Simmons, which manifested itself in proposed legislation that would constrain how judges could interpret cases and prohibit the consideration of international law sources. Finally, Professor Keitner identifies three principled objections to the use of foreign and international law sources in constitutional adjudication (categorizing them as as institutionalist, instrumentalist, and inherentist objections), and responds to each in turn. Professor Keitner concludes, Participating in international judicial dialogue should be viewed as a means of strengthening, not weakening, our commitment to the democratic values embodied in the U.S. Constitution.
THE COSTS AND CONSEQUENCES OF INCORRECT CITATIONS: EUROPEAN LAW IN THE U.S. SUPREME COURT
Building on the controversy over foreign citations in domestic courts, this article reflects on the U.S. Supreme Court's practice of quoting EU law and the European Court of Human Rights’ case law. It offers a detailed examination of how the U.S. Supreme Court has used European sources and shifts the debate over whether it should use them, by explaining a different way in which the court could exploit them. The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges’ reasoning: laws targeting homosexual conduct; federalism; and the death penalty. It singles out the relevant passages of each U.S. Supreme Court decision, explores the European sources that it points to, and evaluates how accurately the court depicts them. It turns out that all the references that the U.S. Supreme Court has made to European jurisprudence are either mistaken or misleading. The article argues that the foreign jurisprudence should not have been ignored, but rather should have been used better, investigated deeper, and utilized as an informational tool to aid the court’s reflections than merely to bolster its already decided interpretation of the U.S. Constitution. The basic requirement for using foreign laws correctly is an adequate understanding of what such laws mean in the legal order from which they come and how they resonate with the context in which they are imported.
2009
The U. S. Supreme Court is responsible for interpretation of the highest law in the United States, the federal Constitution. Throughout more than 200 years of its history, the Court has decided numerous cases shaping, reshaping and modifying many different clauses and provisions of the document. Among various methods of constitutional interpretation, most often the Justices have referred to the original intent of the Framers (historical interpretation), plain meaning of the document (textual interpreta tion), character of the analyzed institutions (structural interpretation), theoretical aspects of the issue (doctrinal interpretation) or they have imposed a balancing test of arguments which led to a so-called reasonable interpretation. In this process the Court has rarely referred to arguments stemming from the international community, and has hardly ever used them as a justification of particular decisions. Such a reluctant attitude towards arguments offered by the international community may prove the lack of legal necessity of the use of such arguments. However, there are a few examples of the Courts adjudi cation in which a reference to the international community became a significant part of the majority opinion, which may lead to the assumption that the Justices tend to use such arguments in the case of a highly political issue (Brown v. Board of Education) or in order to justify a major change in legal issues (death penalty cases). The main purpose of this paper is to analyze the most crucial opinions of the U. S. Supreme Court in which the Justices decided to settle the disputes in relation with arguments posed by the international community. The author aims at finding a visible pattern of influence of the international community on the decision-making process of the Supreme Court. The answer to this question may reveal the real attitude of American law towards international law.
Brigham Young Univ Journal of Public Law, 2007
In the last few years, the U.S. Supreme Court has issued several high-profile opinions that refer to international and foreign law, 1 igniting a heated debate among the justices, legal scholars, politicians, 2 and commentators regarding the proper use of international and foreign law in Supreme Court jurisprudence. Justice Scalia, usually joined by Justice Thomas and Chief Justice Rehnquist, has led the fight against the use of foreign and, to a lesser extent, international law as a basis for constitutional decision-making. Justices Breyer, Ginsberg, Kennedy, O'Connor, Souter, Stevens, and White have asserted that international and foreign law have relevance to their work and that it is not inappropriate to refer to such sources in their decision-making. 3
Criminal Law Bulletin, 2015
Whenever most legislatures in death penalty states have rejected a particular application of capital punishment, the Supreme Court has held that no state may retain that application, reasoning that any death penalty approach rejected by the majority of states is, perforce, unconstitutionally “cruel and unusual” under the Eighth Amendment. Although some laud these decisions, they ignore the States’ Tenth Amendment rights to govern themselves within broad constitutional parameters. Rather than defer to opinion polls or tallying state legislative enactments, the Court should engage in true constitutional analysis, forbidding cruel and unusual punishments, but simultaneously honoring states’ rights to govern themselves.