The US cannot ignore international law in interpreting its constitution, writes Sarah H Cleveland.
In striking down the death penalty for juveniles earlier this month, the US Supreme Court turned a decisive page in a debate which has raged for years over the role of international law in interpreting the US constitution.
Since 1988, the justices have sharply disputed whether to consider international norms in defining such concepts as "cruel and unusual punishments" and due process. In Roper v Simmons, however, the 5-4 majority resoundingly supported the relevance of international law. And Justice Sandra Day O'Connor's dissent nevertheless agreed that "the existence of an international consensus. . .can serve to confirm the reasonableness of a consonant and genuine American consensus".
The decision again brings to the fore a dispute which is enduringly provocative, because it pits those who stress the uniqueness of the American constitutional system against those who emphasise what America shares with the global community. Ultimately, it is a debate about whether America's strength lies in its historical independence from the whims of global society or from its leadership role therein.
Roper was simply the most recent battleground on which Justices Antonin Scalia and Stephen Breyer have acted as spokesmen for the two opposing camps. Scalia has asserted that "modern foreign legal materials can never be relevant to an interpretation of. . .the meaning of the US constitution". In this, he is supported by Justice Clarence Thomas, who has protested the court's apparent willingness to "impose foreign moods, fads or fashions on Americans".
Breyer and at least five other members of the court argue that international norms should inform US constitutional analysis in a world increasingly united by globalisation, democratisation and the spread of universal human rights.
The two camps have clashed over such hot political issues as the death penalty, abortion and gay rights. But today's justices are not the first to wrestle with the need to find the appropriate balance between the two approaches. Two centuries ago, in a case arising from the War of 1812, Chief Justice John Marshall wrote: "In expounding the constitution, a construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it does not possess elsewhere." Marshall presumed that the constitution would incorporate international norms. Indeed, since the nation's founding, the court has often looked to international rules in a broad range of contexts - notably to help define state powers within the US federal system.
Even the current administration, while flouting many international obligations, has sought sweeping powers from international rules which prove convenient. Just last term, the Justice Department argued to the court that the president's authority to detain US-born alleged Taliban fighter Yaser Esam Hamdi derived from the international laws of war. The court divided over the argument. Four justices looked to international law both as supporting the president's power to detain and as imposing limits on that power. Justices David Souter and Ruth Bader Ginsburg in turn objected to the apparent contradiction in the administration's claim of powers recognised by the laws of war while failing to provide detainees the protections afforded by those same rules.
The ongoing disagreement over the relationship to international law reflects fundamentally different attitudes towards America's place in the international system. Justice Scalia, a stark proponent of American constitutional exceptionalism, looks back to the country's beginnings in urging that "if there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are". He is doubtless correct that certain aspects of US constitutional design deliberately rejected the practices of Europe. These include the US's liberal free speech protections and the right to jury trial in civil and criminal cases, unknown outside Britain at the founding.
It is incorrect, however, to suggest that the entire constitutional system sets the US apart from the international community. The founders also worked from the assumption, set forth in the Declaration of Independence, that humanity shares a common set of inalienable rights.
The drafters of the constitution were well-versed in international law, and they intended the US to take its place among the community of nations by adhering to international rules. Thomas Jefferson considered the law of nations "an integral part . . . of the laws of the land" and John Jay, one of the authors of the Federalist Papers and first chief justice of the US, proclaimed that "the United States had, by taking a place among the nations of the Earth, become amenable to the laws of nations".
Therefore, it would be surprising if the founders expected the government's powers to be construed in isolation from international rules. Similarly, the general concepts of individual rights such as "liberty" and "cruel and unusual punishments" which the drafters incorporated into the constitution reasonably invoke the fundamental values of the international community.
This dialogue between international and constitutional values has been largely lost to modern jurisprudence as the use of international law has become a political football in the charged debates over the death penalty and gay rights.
Each side of the Scalia/Breyer debate today contends that its approach does the most to protect fundamental liberties. In reality, however, international law does not point in any particular direction in promoting individual rights. Take abortion. International law, in the form of treaties and customary international norms, is essentially silent on the subject, while international practice runs the gamut from prohibition to liberal abortion laws.
Abortion, in other words, stands in stark contrast to the juvenile death penalty: the US was the only democracy in the world which continued to officially sanction the penalty and the practice placed it in the lonely company of such notorious human rights violators as China, Yemen and Iran.
Justice Scalia frequently criticises the modern court for selectively citing foreign sources which support its views while ignoring practices abroad that contradict the US's constitutional norms.
In the 1857 Dred Scott case, the chief justice of that period, Roger B Taney, infamously invoked foreign practices to conclude that the constitution's framers did not intend to bestow citizenship on African descendants. But where international rules would have supported freeing Dred Scott from slavery, Taney rejected their relevance.
Those who seek to differentiate the American system from the international community fail to recognise that the US is a participant in the making of international law - from international trade rules to international humanitarian law.
The use of international law does not mean that it should be followed blindly. But wilfully ignoring those rules brings the US into conflict with other nations, as with the juvenile death penalty, and hampers its ability to invoke international rules from which it wishes to benefit. International law has been a part of US law from the beginning, and its use in constitutional analysis is part of the American tradition. - (LA Times/Washington Post Service)
Sarah Cleveland lectures on the constitutional law of US foreign relations at the University of Texas School of Law