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Editorial Reviews
From the Publisher
Review of the hardback: 'This superb volume will be widely read and cited - by comparative lawyers, international lawyers, scholars of socio-legal studies, and political scientists.' Michael Byers, Canada Research Chair in Global Politics and International Law, University of British ColumbiaReview of the hardback: 'It has become a cliché to refer to globalization and the increasing international influences on domestic constitutional law; but clichés are not scholarship. The Migration of Constitutional Ideas brings together an outstanding collection of articles by international and interdisciplinary scholars who offer both greater conceptual clarity and much useful empirical data. No one interested in the topic can afford to ignore this book.' Sanford Levinson, University of Texas Law School and Department of Government; Co-editor of Constitutional Stupidities, Constitutional Tragedies (1998)
Review of the hardback: 'Under Sujit Choudhry's artful guidance, the contributors to The Migration of Constitutional Ideas have produced a remarkably coherent volume that will be indispensable to constitutional scholars and policymakers everywhere. The essays not only give a snapshot of the global state of constitutional thought today, they take on the hard normative questions of right and wrong that are so pressing as new constitutions are written and old ones put under pressure in the post 9/11 world. This is comparative law the way it was meant to be - with a keen eye for discerning the inner life of constitutional ideas on the move.' Noah Feldman, Professor of Law, New York University School of Law
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Meet the Author
Sujit Choudhry is an Associate Professor at the Faculty of Law, University of Toronto, and is cross-appointed to the Department of Political Science in the Faculty of Arts.
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978-0-521-86482-4 - THE MIGRATION OF CONSTITUTIONAL IDEAS - Edited by Sujit Choudhry
Excerpt
1
Migration as a new metaphor in comparative constitutional law
SUJIT CHOUDHRY
The politics of comparative constitutional law
Usually judges ask the questions, but on this night the roles were reversed. The occasion was a public conversation between United States Supreme Court Justices Breyer and Scalia, answering questions posed by constitutional scholar Norman Dorsen.1 The topic was the ‘Constitutional Relevance of Foreign Court Decisions’ to the Court’s constitutional case law. For a court routinely called upon to address the most divisive issues in US public life, judicial citation practices hardly seem worthy of a rare evening with two of its most distinguished members. Yet the auditorium was packed, with hundreds more watching over a live video feed.
Court observers knew that the event merited close attention. The backdrop was the Court’s increasing use of comparative and international law – both described as ‘foreign’ to the US constitutional order – in its constitutional decisions over the previous decade. This practice – which I term the migration of constitutional ideas –has deeply divided an already divided Court, along the same ideological lines which have polarized its jurisprudence. Breyer and Scalia are the leading figures in this ongoing jurisprudential drama, although other Justices have joined the debate. Their initial skirmish, in Printz,2 arose in a challenge to federal attempts to ‘commandeer’ state officials to deliver federal programmes. Breyer suggested that the constitutionality of this practice in European federations was relevant to the Court’s analysis, while Scalia, delivering the opinion of the Court, declared ‘comparative analysis inappropriate to the task of interpreting a constitution’.3 The battle quickly moved to the interpretation of the Bill of Rights, principally in cases involving the death penalty. In dissenting judgments in denials of certiorari to challenges to the ‘death row phenomenon’ (Knight,4 Foster5), Breyer invoked the unconstitutionality of lengthy waits on death row in other jurisdictions as ‘relevant and informative’,6 ‘useful even though not binding’,7 and as material that ‘can help guide this Court’.8 Justice Thomas, speaking for the majority, suggested that the citation of foreign jurisprudence indicated a lack of legal support in domestic materials,9 and equated it with the imposition of ‘foreign moods, fads or fashions on Americans’.10
Advocates of the migration of constitutional ideas, however, appear to have gained the upper hand. In Lawrence v. Texas,11 where the Court struck down the criminal prohibition of sodomy and departed from its earlier holding in Bowers v. Hardwick,12 Justice Kennedy’s majority judgment cited decisions of the European Court of Human Rights to illustrate ‘that the reasoning and holding in Bowers have been rejected elsewhere’.13 Although it is possible to read Lawrence’s citation of European jurisprudence narrowly as a refutation of Bowers’ claim that the prohibition of sodomy was universal in Western civilization, the better interpretation is Michael Ramsey’s, who argues that the citation ‘suggests that constitutional courts are all engaged in a common interpretive enterprise’.14 Scalia, now in dissent, stated that the discussion of European case law was ‘meaningless dicta’15 and ‘dangerous dicta’16 because ‘foreign views’17 were not relevant to the interpretation of the US Constitution. And last spring in Roper,18 the debate over the migration of constitutional ideas was joined again. In finding the juvenile death penalty unconstitutional, Justice Kennedy (for the majority) reviewed a range of foreign sources and declared that they, ‘while not controlling our outcome, … provide respected and significant confirmation for our own conclusions’.19 Scalia’s dissent continued his series of escalating attacks on the Court’s comparative turn. He accused the majority of holding the view ‘that American law should conform to the laws of the rest of the world’ – a view which ‘ought to be rejected out of hand’.20
The Court’s increasingly acrimonious exchanges over the citation of foreign sources had shed more heat than light. Justices advocating the migration of constitutional ideas had failed fully to justify this emergent interpretive practice – that is, to explain why foreign law should count. The evening (after oral argument in Roper, but before it was handed down) presented a rare opportunity for clarification. Although Breyer and Scalia both referred to foreign law, their focus appeared to be on comparative materials – that is, either judgments of other national courts, or international courts interpreting treaties not binding on the United States (e.g. the European Court of Human Rights, interpreting the European Convention on Human Rights) – as opposed to international legal materials which do bind the United States. Dorsen raised this issue at the outset, and Scalia rightly responded that the burden of justification squarely rested on the proponents of its use. As he noted, proponents and opponents of the use of comparative law agree that it is not ‘authoritative’ – i.e., that it is not binding as precedent. But as Scalia noted, the question then is what work foreign law is doing: ‘What’s going on here? … if you don’t want it to be authoritative, then what is the criterion for citing it? … Why is it that foreign law would be relevant to what an American judge does when he interprets [the US Constitution]?’21
Scalia’s retort shifted the persuasive onus to Breyer, and highlighted that his colleagues on the Court had offered casual and under-theorized responses to this fundamental question. Breyer did little that evening to advance his case. He began strongly, stating that he ‘was taken rather by surprise, frankly, at the controversy that this matter has generated, because I thought it so obvious’.22 The reason for comparative engagement was that these materials were cited by advocates before the Court, and ‘what’s cited is what the lawyers tend to think is useful’. Now this begs the question of why these materials are useful. Breyer offered a pragamatic rationale, suggesting that foreign courts:
So foreign judgments are a source of practical wisdom to the tough business of deciding hard cases where the positive legal materials run out. As Breyer put it, he was ‘curious’ about how other courts tackled similar problems.24 Scalia pushed back, asking why judges should cite such cases, according normative status to their reasoning. Read the cases, ‘indulge your curiosity! Just don’t put it in your opinions’, he said.25 When faced with this argument on an earlier occasion, Breyer’s response was simply to think ‘All right’.26 Having failed to explain why the Court should cite comparative case law, Breyer, by his own admission, became ‘defensive’ and opined that comparative engagement was about ‘opening your eyes to things that are going on elsewhere’.27 To cite comparative jurisprudence is to demonstrate an educated, cosmopolitan sensibility, as opposed to a narrow, inward-looking, and illiterate parochialism. However, demonstrating worldliness is hardly adequate justification for a major shift in the Court’s constitutional practice.
A lot is at stake in Breyer’s failure to respond to Scalia’s challenge. As Alexander Bickel explained over forty years ago, in liberal democracies which have opted for written constitutions enforced by unelected courts, the power of judicial review is a form of political power which cannot be legitimized through democratic accountability and control.28 So courts must legitimize their power through both the processes whereby they determine whether issues come before the courts and the reasons for their judgments, somehow distinguishing adjudication from other forms of political decision-making. The various features of legal reasoning – stare decisis, for example – are more than just the means through which courts arrive at decisions. They define and constitute the courts’ unique institutional identity. The very legitimacy of judicial institutions hinges on interpretive methodology. So courts must explain why comparative law should count. And if courts do not, judicial review is open to the charge of simply being politics by other means, cloaked in legal language, and subject to attenuated democratic control.
This is not a problem unique to the United States. As Alan Brudner wrote recently:
In each and every country where the migration of constitutional ideas is on the rise, the demands of justification must be met. This is true even for countries such as South Africa, whose Constitution provides that courts ‘must consider international law’ and ‘may consider foreign law’ in interpreting its Bill of Rights.30 Although international law asserts its supremacy over the South African legal order, the South African Constitution only directs courts to ‘consider’ it, raising the question of how exactly it should be considered. And with ‘foreign law’ (i.e., comparative law), the additional question is why and under what circumstances courts should engage with it at all.
To be sure, the charge that comparative engagement is somehow undemocratic has gained widespread currency in US legal circles, albeit for an entirely different set of reasons with particular resonance in that country.31 Contra Bickel, the argument made is that judicial review is a democratic practice in the United States. The constitutional text was popularly ratified, and so as Paul Kahn puts it:32
To Americans, judicial review is legitimate because they view ‘the Court as the voice of the Sovereign People’. Chief Justice John Marshall made this point brilliantly in Marbury v. Madison.33 Moreover, federal judges, as Chief Justice Roberts pointed out in his confirmation hearings, ‘are appointed through a process that allows for participation of the electorate’ since both ‘the President who nominates judges’ and ‘Senators who confirm judges are accountable to the people’.34 For its opponents, the migration of constitutional ideas poses two threats to the democratic character of judicial review, from within and without the US constitutional order.
First, comparative engagement feeds into fears regarding judicial activism. For Scalia, the democratic character of judicial review not only justifies it, but sets limits on its content and scope. In particular, it counsels originalism, with courts serving as modern-day agents of the constitutional framers. Foreign law – whether comparative or international – on the originalist view, ‘is irrelevant with one EXCERPTion: old English law’, which served as the backdrop for the framing of the constitutional text.35 Now Scalia quickly concedes that originalism is no longer the exclusive method of US constitutional interpretation. The Eighth Amendment, for example, has been interpreted as incorporating ‘evolving standards of decency that mark the progress of a maturing society’.36 Even here, though, Scalia argues that to maintain the democratic character of judicial review, the Court must rely on ‘[t]he standards of decency of American society – not the standards of decency of the world, not the standards of decency of other countries that don’t have our background, that don’t have our culture, that don’t have our moral views’.37 To retain its democratic legitimacy, the US practice of judicial review must fix its gaze firmly inward, not outward, taking cues from US political institutions and values.
The only theory of constitutional interpretation which permits comparative engagement, for Scalia, is one where the judge looks ‘for what is the best answer to this social question in my judgment as an intelligent person’, based on the ‘moral perceptions of the justices’.38 For Scalia, this would mean that constitutional adjudication is no more than the imposition of judicial policy preferences. Scalia sharpened this objection by suggesting that judges working with this theory cite comparative law selectively, such that ‘[w]hen it agrees with what the justices would like the case to say, we use the foreign law, and when it doesn’t agree we don’t use it’.39 In his confirmation hearings, Chief Justice Roberts made the same point, testifying that ‘looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them, they’re there’.40 Citing comparative law permits courts to achieve desired results while pretending they are engaged in a legal enterprise. For example, Scalia suggested that while the Court cited foreign law in Lawrence to expand the scope of liberty, it failed to cite comparative materials in its abortion jurisprudence because foreign courts have construed reproductive rights more narrowly than have US courts. In sum, the citation of comparative case law ‘lends itself to manipulation’,41 or what Judge Posner has referred to as ‘judicial fig-leafing’,42 designed to obscure the reality of judicial choice. And although he clearly disagrees with Scalia on the propriety of comparative citation, Breyer accepts that it is wrong for judges to ‘substitute their own subjective views for that of a legislature’.43
The second objection to the migration of constitutional ideas is that it facilitates the erosion of US sovereignty by the forces of globalization. The concern is not about the imposition of the elite social, political, and economic views of the judiciary on the US people. Rather, the fear is that comparative citation turns courts into agents of outside powers – international public opinion, international organizations, and even foreign governments – to thwart the will of the US public. Roger Alford has coined the term ‘international countermajoritarian difficulty’ to capture this idea.44 As Alford writes, ‘[u]sing global opinions as a means of constitutional interpretation dramatically undermines sovereignty by utilizing the one vehicle – constitutional supremacy – that can trump the democratic will’.45 By contrast, constitutional adjudication which relies on sources internal to US constitutional culture is for that reason legitimate. As one questioner from the floor at the Breyer and Scalia session put it, ‘these [i.e., non-US] legal materials have no democratic provenance, they have no democratic connection to this legal system, to this constitutional system, and thus lack democratic accountability as legal materials’.46
An important part of this argument is the elision of the distinction between international law binding on the United States and comparative materials which are not. Although their claims to authority in domestic legal orders are totally different, the two are nonetheless referred to together in the literature as ‘international norms’, ‘international values’, or ‘international sources’.47 As Breyer said on an earlier occasion, ‘my description blurs the differences between what my law professors used to call comparative law and public international law. That refusal to distinguish (at least for present purposes) may simply reflect reality’.48 Harold Koh uses the term ‘transnational law’ to conjoin the international and the comparative.49 What binds these hitherto distinct bodies of law together is that they are from outside the United States and are viewed as threats to US sovereignty. Into this broad category fall the decisions of United Nations bodies, international treaties (including those to which the United States is a signatory), the decisions of international human rights bodies and tribunals, and the judgments of foreign courts.
Although not part of Scalia’s talk, this criticism is central to popular criticism of the Court’s turn to comparative sources. Quin Hillyer wrote in the National Review that the reference to European case law in Lawrence was ‘subversive’, because it would lead to a loss of US sovereignty.50 In criticizing this position, Tim Wu describes this fear as the Court ‘obeying foreign commands’.51 Chief Justice Roberts has picked up on this criticism as well, testifying that ‘[i]f we’re relying on a decision from a German judge about what our Constitution means, no President accountable to the people appointed that judge, and no Senate accountable to the people confirmed that judge, and yet he’s playing a role in shaping a law that binds the people in this country. I think that’s a concern that has to be addressed’.52
Opponents of the migration of constitutional ideas have confronted Breyer and his colleagues with a dilemma. They have defined the terms of debate: on one horn of the dilemma, comparative jurisprudence is legally binding. On the other horn, it is not. But either use is illegitimate. If comparative materials are binding, the Court is acting as an agent of foreign authorities. If it is not, comparative citation is window-dressing for judicial legislation. These arguments were the case to meet that evening. Breyer desperately needed to avoid the dilemma by challenging this way of framing the problem, but failed miserably. Even worse, faced with Scalia’s objection that the comparative engagement is part of a political agenda, Breyer effectively agreed. One reason for citing the case law of other national courts, said Breyer, was to consolidate judicial review in transitional democracies:53
Other members of the Court have joined Breyer in offering this crude, over-blown, realpolitik justification. Justice O’Connor thus remarked that citing the case law of other national courts ‘will create that all-important good impression. When US Courts are seen to be cognizant of other judicial systems, our ability to act as a rule-of-law model for other nations will be enhanced’.54 Justice Ginsburg pushed this line of thinking even further, suggesting that this interpretive practice promotes comity on other fronts, which is valuable ‘because projects vital to our well being – combating international terrorism is a prime example – require trust and cooperation of nations the world over’.55
The retreat into realism and the failure of US judges fully to articulate and justify their participation in the migration of constitutional ideas are linked. Judicial realism is fueled by the poor fit between traditional legal categories and the emerging phenomenology of comparative constitutional argument. This is reflected in the difficulty that judges and scholars have faced in simply trying to describe what is taking place. Proponents assert that foreign case law is not ‘binding’ or ‘controlling’56 but then cannot explain how or why it is used instead. To say that courts ‘rely upon’ or ‘use’ foreign jurisprudence because it is ‘useful’ or ‘helpful’, or that US courts should ‘construe [the US Constitution] with decent respect’57 for comparative jurisprudence, does not explain why or how such jurisprudence is helpful. Nor, on a deeper level, does it seek to justify the appropriateness of seeking that kind of help.
In short, the practice of comparative constitutional law has outgrown the conceptual apparatus that legal actors use to make sense of it. It is the responsibility of the bench, the bar, and the academy to respond. The failure to do so until now has had severe costs. In a remarkable series of resolutions in the US House of Representatives and Senate, US legislators from the Republican Party have begun to challenge the Court’s
© Cambridge University Press
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