The Use of Foreign Sources in the Supreme Court's Cruel and Unusual Punishment Jurisprudence

-- By WenweiLai - 25 Feb 2010

The Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” In Trop v. Dulles (1958), the Supreme Court held that “the evolving standards of decency that mark the progress of a maturing society” shall be the standard to decide whether a punishment is so disproportionate as to be “cruel and unusual.” Starting from Atkins v. Virginia (2002), the Court has cited international sources to interpret “cruel and usual punishment” in three cases. The use of foreign sources drew sharp criticism from the dissenters in the Court, scholars, and even politicians. Congress passed a resolution to condemn the use of foreign sources. The critics, the most vocal among whom Justice Scalia, argued that “the Court’s discussion of foreign sources as dictum that was meaningless yet dangerous on the ground that it invited judicial imposition of foreign moods, fads, or fashions on Americans.”

Citing international sources is a Court tradition

However, there is a 200-year tradition of using foreign sources in Constitutional interpretation in the Court jurisprudence. As early as 1804, Chief Justice John Marshall established the Charming Betsy principle- courts should not adopt a construction that would violate international law unless there is no alternative construction. Murray v. Charming Betsy (1804). As to the Eighth Amendment, in Trop 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 conclusion that denationalization of petitioner violated the Constitution.

The driving force behind the newborn trend of resistance: countermajoritarian difficulty, a fundamentally flawed theory

Therefore, the attack on the use of international sources is a rather newborn phenomenon. However, this trend must be examined in a broader context: the development of the countermajoritarian difficulty theory. After Professor Alexander Bickel published this theory in the 1960s, it soon became the most hotly debated problem in American Constitutional law. Since unelected judges lack the legitimacy that political branches enjoy, an argument can naturally be made that they should not transplant foreign ideas into American Constitutional law, the dominant player of which is not the judicial branch.

Under this approach, judicial restraint is a required virtue, and judicial activism is not acceptable. However, this approach is based on a flawed assumption: the elected officials are more legitimate than the judges. They are not. Congress is so interest-group-dominated that is it highly doubtful they can represent the people very well. Moreover, the Court has the power to check and balance Congress by the Constitution’s institutional design. I would rather believe the living-Constitution doctrine, which was embodied in Trop: “Time works changes, brings into existence new conditions and purposes. Theretofore a principle, to be vital, must be capable of wider application than the mischief which gave it birth.” Since the words of a constitutional provision like “cruel and unusual” is seldom clearly defined, the Court should look at external sources to help its decisionmaking. Anything that relates contemporary decisions to contemporary phenomena is a step in the right direction.

This doctrine makes even more sense when the external sources are trends commonly accepted by the global community. Federalist No. 63 argued that “in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed.” In other words, when Congress is dominated by domestic interest groups, foreign sources can help the Court resist the biased decisions made by Congress.

Difficulty in distinguishing usable sources: the Court needs to address it in its use of foreign sources

For the conservatives, the use of foreign sources raises an even more serious concern than an ordinary countermajoritarian difficulty problem does, because the issue of sovereignty is also involved. They treat the use of foreign sources as a foreign intrusion upon the popular sovereignty of the United States. This attitude is probably unique to Americans, and it can be seen from this country’s resistance to international organizations like the International Criminal Court. However, such criticism is justifiable only when the foreign sources are treated as binding authorities. The Court has never done this. In Atkins, the Court stated that world opinions are “by no means dispositive.” The Court also explained in Roper v. Simmons (2005) that global views confirmed but did not control its decision that capital punishment of juvenile offenders is forbidden by the Constitution. Therefore, the seemingly self-evident argument that foreign source means a foreign intrusion is unfounded.

Another argument against the use of foreign sources can be paraphrased in the following words from Scalia in Roper: “…all the Court has done today… is to look over the heads of the crowd and pick out its friends.” Compared with the prior criticism, this one does not doubt the legitimacy of citing foreign sources. Rather, it focuses on the difficulty of selection among various foreign sources. Even though foreign sources are just used as persuasive authority, they still affect the judgment of the Court. So it is imperative that the Court accept only the sources that are really persuasive. Up to now, there has not been a clear framework as to in terms of source selection, but the Court is aware of this problem. For example, in Lawrence v. Texas (2003), another decision citing foreign sources (esp. a European Court of Human Rights decision) to overrule a prior decision regarding sodomy, the Court emphasized that it was borrowing from the common Western civilization upon which the Constitution was founded.

The use of foreign sources can be justified if the Court gives a proper explanation that the foreign legal systems it looks to share with the US a common respect for human rights. Therefore, the decisions citing international human rights conventions, like Lawrence or Roper (which cited the Convention on the Rights of the Child), would be the most highly justified ones. On the other hand, when a foreign country shares less in common with the US with respect to the problem at issue, like citing decisions from a parliamentarian system country for a separation of powers question, it may be harder for the Court to justify its use of foreign sources.