14 Apr The Future Debate on Constitutional Comparativism
14.04.06
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1 Comment
Melissa Waters over at Concurring Opinions discusses Justice Kennedy’s speech at the ASIL and asks, “Is there anything new to be said on the subject of the role of foreign and international law in U.S. courts?”
Good question. Here are a few suggestions:
- For those who propose a role for foreign and international law in constitutional interpretation, explain precisely what that role should be. It’s not enough to say that foreign and international law is relevant. How is it relevant? Is the objective dialogue, integration, consonance, or assimiliation? Dialogue recognizes that the two disciplines have things to say to one another about phenomena in which their interests overlap. Integration more ambitiously seeks unification of the two disciplines into a single discourse. Consonance retains the autonomies of the two disciplines in their acknowledged domains, but seeks reconciliation in overlapping regions. Assimilation seeks to achieve the maximum possible conceptual merging of the two disciplines. So which is it? Or perhaps the critics are right and the relation is one of conflict (the two disciplines threaten to take over legitimate concerns of the other) or independence (the two disciplines address separate realms of inquiry). (As discussed in a forthcoming symposium piece in the Albany Law Review, these constructs are not original to me and are borrowed from a noted scientist, John Polkinghorne, who addresses another debate about overlapping disciplines).
- What will the Roberts Court do with the debate now that we have a Court with four outspoken critics and five outspoken proponents? Will foreign and international law be cited in any decision in which one of the critics joins the opinion?
- Will social conservatives grab the baton and invoke foreign and international law to argue for a curtailment of individual liberties on matters such as abortion (or partial birth abortion), even though judicial conservatives view the project with suspicion? Social conservatives have plenty to gain from adopting this approach if they are so inclined.
- Will the internationalists on the Court reference foreign and international law to curtail rights as a strategic response to Scalia’s criticism that they are selective in their invocations of foreign and international law? A passing reference in a rights-curtailment case might undercut Scalia’s criticism of selective borrowing.
- What is the next great subject for reliance on foreign and international law in constitutional interpretation? The death row phenomenon? Life imprisonment without parole? Juvenile life imprisonment? Free speech? Free exercise of religion? Privacy?
- Will the role of foreign and international law find a following in constitutional structuralism, as suggested by Justice Breyer in Printz? If so, what will be the contours of that debate? Comparative federalism? International federalism such as the ECHR’s margin of appreciation?
- Why is the debate about constitutional comparativism only about foreign constitutional courts? Why is there not greater discussion of the comparative experiences within our own system by reference to state constitutions and state constitutional courts?
- What will lower courts do with the debate? Will they embrace it as the Massachusetts Supreme Judicial Court did in Goodridge and the Missouri Supreme Court did in Roper, or will the lower courts express greater caution as the Ninth Circuit did in Allen v. Ornoski?
- Is it just international law that matters in this debate or does international relations also have a role to play? Should we, as Harold Koh has suggested, adopt a constitutional Charming Betsy that avoids, whenever possible, constitutional interpretations that foment international discord?
Incidentally, I am at the University of Georgia today at the invitation of Dan Bodansky, Peter Spiro, and Kevin Heller to discuss this last topic, which is the subject of my forthcoming article in the Ohio State Law Journal on the notion of a “constitutional Charming Betsy.“
Roger,
Folks might want to know that they can download your paper at Larry Solum’s Legal Theory Blog under the Friday Calendar announcement (I suppose it’s the next best thing to being there today!).
Best wishes,
Patrick