The Supreme Court has increasingly turned to international law to interpret provisions of the U.S. Constitution. Cases such as Lawrence v. Texas and Roper v. Simmons have cited both European decisions and international law as persuasive authority in constitutional interpretation. This use of foreign and international law in domestic constitutional interpretation raises important questions. Are foreign and international law valid sources of constitutional interpretation? Is the use consistent with originalism? To what extent is such reliance a new phenomenon?I don't know whether foreign and international law will be considered a valid source of constitutional interpretation, nor consistent with originalism, but as many already have noted, such reliance is not a wholly new phenomenon. The American courts have been considering the law of other nations in determining the law of their own for at least two centuries.
Today marks the 203rd anniversary of U.S. Supreme Court Chief Justice John Marshall's handing down* the decision in Marbury v. Madison, which looked to the lately abandoned government and tradition of England for guidance:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.Marbury, 5 U.S. at 163. And again, despite the striking absence of a king from the U.S. government:
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. 'In all other cases,' he says, 'it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.'
And afterwards, page 109 of the same volume, he says, 'I am next to consider such injuries as are cognizable by the courts of common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.'
After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone, Vol. III. p. 255, says, 'but injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers: for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents by whom the king has been deceived and induced to do a temporary injustice.'5 U.S. at 165.
One might counter that Marshall merely cited Blackstone for common law authority, which in American law clearly arises from the English tradition, in contrast to the constitutional law that arose only from the consent of the people through their thirteen states. Yet look at the first quote again. In deciding what is at least partially a constitutional issue -- whether Marbury could sue an executive officer for failing to give him the commission that was his by right -- Marshall pointed out, "In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court." This seems to me a definite use of the English example to explain what the limits of executive power are. If "the king himself" cannot be beyond the reach of suit, then neither can the executive branch that has replaced him.
Regardless of one's views on international law and its interaction with the American constitution, this weekend's symposium promises to be informative, enlightening and even entertaining; for example, the panel mentioned above features Judges Frank Easterbrook and William Pryor. Members of the Columbia Federalist Society will be blogging here at Ex Post, and we hope that other attendees keep the discussion going in comments.
* The phrase "handing down" does say a lot about how we view judges, doesn't it?