Sarah Cleveland and "Our International Constitution"

Sarah Cleveland has just published a very significant article in the Yale Journal of International Law entitled “Our International Constitution.” Cleveland is a great writer and her article is a pleasure to read, even though I sharply differ with her on the appropriateness of using international law to interpret constitutional guarantees (see my articles here, here and here).

Cleveland is an evolving constitutionalist and a strong proponent of the use of international law in constitutional interpretation. She offers a cornucopia of evidence of its historical use. She distinguishes between express references to international law (as with the treaty power or the war power), identifies subjects in which international law provides background principles (such as territoriality and sovereignty), and then highlights instances of its use in protecting or curtailing individual rights.

After canvassing the historical record her conclusions are that there is a longstanding tradition of resorting to international law, that the Court has treated that law as evolving, and sometimes it has even considered international law to be binding. She also recognizes that reference to international law has been opportunistic and has frequently resulted in the expansion of government power and the curtailment of individual rights.

But what really distinguishes Cleveland’s article is her attempt to impose principled limits on the use of international law. She proposes guidelines for its use, including (1) the constitutional receptiveness to the international rule, (2) the universality of the international norm, (3) acceptance of the international rule by the United States, and (4) embracing international law limits that accompany international powers.

The article is interesting in that applying her principled approach, Cleveland offers only the faintest of praise for Roper and Lawrence. She describes Lawrence as raising “thorny questions regarding selectivity and cultural relevance.” She could have gone further and simply stated that Lawrence does not comport with the universality principle. Instead she argues that Lawrence is consistent with a longstanding jurisprudential traditional of looking to Western European practices. But then when she turns to abortion she seems to more strictly enforce the rule of universality, and suggests a requirement of an international consensus, which she contends is lacking. Of course, you could make the counter-argument that there is no international consensus in favor of the practice at issue in Lawrence but there is a Western European consensus against the practice at issue in Roe.

As for Roper, Cleveland says that the U.S. failure to sign or ratify the U.N. Convention on the Rights of the Child was a “mixed factor” and that the ICCPR reservation on juvenile death penalty expressed a clear intent not to be bound by that treaty provision. She nonetheless argues that the United States is not a consistent objector of a customary international norm against juvenile death penalty. But by importing customary international and requiring the United States to be a consistent objector, she has essentially flipped the Eighth Amendment test — which traditionally requires a national consensus that a practice has become cruel and unusual — to a requirement of a national consensus to reject an international norm. She could have placed far greater emphasis on the U.S. reservation in the ICCPR, which guaranteed the right of the States to continue with the status quo, as underscoring that the United States has not accepted this norm. She could have just conceded that the United States has not accepted this international norm and that Roper did not represent a principled approach to the use of international law.

Whether you agree or disagree with Cleveland’s article, you cannot ignore its importance. I seriously question the notion that an evolving Constitution should float with the shifting currents of international values. And I would have preferred a stronger application of her principles to Roper and Lawrence. But as a proponent of the practice, Cleveland deserves great credit for her bounded rationality in the use of international law to interpret our Constitution.