The Use of Foreign Sources in Supreme Court Decisions: Why Is It an Issue Today?

-- By WenweiLai - 25 Feb 2010

After 2002, suddenly justification is needed for the Court to cite foreign sources.

In recent years, the use of foreign sources in Supreme Court decisions has become a hotly debated issue. After the Court in Lawrence v. Texas (2003) cited a European Court of Human Rights decision to overrule Bowers v. Hardwick (1986) and strike down a Texan law banning sodomy, House Republicans even introduced a resolution stating that “foreign authorities should not be used at all for U.S. cases,” except in some special instances. In fact, the issue was discussed and largely resolved almost 200 years ago.

In Evans v. Eaton (1822), Justice Story cited several English decisions (the ones made after Independence and thus not accepted into American law) in a patent case, drawing criticism from Justice Livingston’s dissent: “…we should be extremely cautious in adopting the rules which have been introduced into other countries, and under laws not in every respect like our own, however respectable the tribunals may be which may have prescribed those rules.” (A similar debate between them was also seen in United States v. Smith (1820)) Later, in Pennock v. Dialogue (1829), Justice Story cited English decisions in another patent case, this time without any dissenting opinions. Since then, the use of foreign sources has become a common practice in Supreme Court jurisprudence. For example, in Bradwell v. State (1872), the Court held that women were not allowed to practice law, because this was unheard of in England.

However, when the Court cited international sources in Atkins v. Virginia (2002) to declare executions of mentally retarded criminals unconstitutional, the conservatives argued heavily against anything that was not included in the original meaning of the Eight Amendment, foreign sources included. Following the decision, various law review articles started debating this issue. All of a sudden, the dormant volcano erupted again.

For the critics, a distinction can be made between patent law and constitutional law: the Constitution is the embodiment of the popular sovereignty of the people, and the use of foreign sources in constitutional interpretation is thus even more suspicious. However, it is doubtful whether there is such a fundamental difference between patent law and constitutional law. In Marbury v. Madison (1804), the Court held that the Constitution should be applied by courts, just like ordinary laws. Even for the Eight Amendment, which is in the center of the dispute today, in Trop v. Dulles (1958) that “… the civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime” contributed to the Court’s conclusion that denationalization of petitioner violated the Constitution. Therefore, the resistance to foreign sources in Constitutional interpretation is just as baseless in terms of past cases.

The political context: the United States became more anti-international and leaned toward unilateralism.

On the other hand, the Constitution is used anti-internationally in other contexts too. For example, after the Rome Statute reached the requisite 60 ratifications in 2002, the Bush Administration made it clear to the UN that the US recognized no obligation toward it. America’s refusal to join the ICC was supported by conservatives on various Constitutional bases: the judicial power of the United States cannot be exercised by a foreign court, the procedural protection does not satisfy the Bill of Rights, etc. Just like the use of foreign sources, this opposition to the ICC is unsound historically: the US has been an active participant in many similar international criminal courts, and it even expressed the desire to create a permanent international criminal court in the 50s.Therefore, the opposition to the use of foreign sources can be seen as part of a broader trend: the resistance to anything foreign and refusal of international standards.

The conservatives offer some legal arguments, but they are political in fact.

The refusal to join the ICC is easier to understand since joining the ICC means a restraint on the military means that can be used. As to the resistance to the use of foreign sources in Constitutional interpretation, it is harder to find any immediate interest. In fact, the arguments provided by the conservatives seem to be purely legal. For example, they would argue that foreign sources are not part of the Constitution; the Court cannot enforce a Constitutional right by changing what the right is. However, this argument confuses two different questions: whether the Court CAN use it and whether the Court SHOULD use it in a specific case. When a persuasive authority is used properly, there should not be the problem of changing what a Constitutional right is.

To respond to the “persuasive source” argument, the conservatives contend that the use of foreign sources by the Court is only nose-counting: we can’t follow something simply because it is followed by others. This is unconvincing as well. Doesn’t the mere fact that most countries in the world are protecting a right means something? For example, the Convention on the Rights of the Child, which was cited in Roper v. Simmons (2005), was ratified by every country in the world except for the US and Somalia. Isn’t it enough to justify the Court’s search for the rationale behind the right’s universal acceptance? The resistance to foreign sources, just like the refusal of the ICC, puts the US together with some totalitarian countries.

The resistance to foreign sources may not necessarily be linked to the development of US unilateralism. It may be said that the conservatives refuse a specific source simply because they don’t like it, such as the abolishment of capital punishment. However, if this is the case, then there is no need for them to reject foreign sources as a whole, since sometimes foreign sources may be on their side. Bradwell is a good example: foreign sources are not always liberal. As a result, a more plausible interpretation may be that the resistance is only part of a larger political ploy. For instance, this website attacks the use of foreign sources by the Court, and then reaches the conclusion that “whether unsafe, unhealthy Mexican trucks will soon be roaming U.S. highways may be decided by a NAFTA tribunal instead of by U.S. law” At the end of the day, the resistance is a political product, not a legal one.