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Published online by Cambridge University Press: 24 January 2025
The interaction between national constitutions and transnational sources of law (foreign and international) has generated quite an active disagreement in the United States about what these bodies of law have to do with each other. This paper will explore these debates and the postures towards transnational law and its role in domestic constitutional adjudication which they express. It will identify three postures — of convergence, of resistance, and of engagement — that are manifest in the opinions of different justices of important high courts around the world, and will argue for a posture of ‘engagement’ at least in established constitutional systems like that of the United States.
This paper was given as the Geoffrey Sawer Lecture, Australia National University, Canberra, on 2 November 2006. The author thanks the Australian National University and Professor Kim Rubenstein for the generous invitation to deliver the lecture and thanks Philippe Danielides, Eric Cochran, Andrew Eberle and Loretta Wiatr for their assistance in checking citations.
1 Atkins v Virginia, 536 US 304, 348 (2002) (Scalia J, dissenting).
2 Posner, Richard, ‘The Supreme Court, 2004 Term — Foreword: A Political Court’ (2005) 119 Harvard Law Review 31.Google Scholar
3 543 US 551 (2005) ('Roper’).
4 See, eg, American Justice for American Citizens Act, HR 4118, 108th Cong 2nd Sess (2004) s 3: stating that no federal court may ‘employ the constitution, laws, … policies, or judicial decisions of any international organisation or foreign state, except for the English constitutional and common law or other sources of law relied upon by the Framers of [the US Constitution]'; Constitution Restoration Act of 2005, HR 1070, 109th Cong 1st Sess (2005) s 201: stating that federal courts may ‘not rely upon any constitution, law, administrative rule,…judicial decision, or any other action of any foreign state or international organisation or agency, other than English constitutional and common law up to the time of the adoption [of the US Constitution]’ in ‘interpreting and applying’ the US Constitution; Senate Res 92, 109th Cong (2005): expressing sense of the Senate that judicial interpretation of the Constitution ‘should not be based in whole or in part on judgments, laws or pronouncements of foreign institutions’ unless they ‘inform an understanding of the original meaning of the constitution'.
5 This debate has political, as well as legal, salience. At least one death threat, against Ginsburg and O'Connor JJ, was reportedly posted on a website relating to their references to foreign or international law. See, Ruth Bader Ginsburg, ‘A Decent Respect to the Opinions of [Human] Kind: The Value of a Comparative Perspective in Constitutional Adjudication’ (Speech delivered at the Constitutional Court of South Africa, 7 February 2006) <http://www.supremecourtus.gov/publicinfo/speeches/sp_02-07b-06.html> at 27 July 2007.
6 See Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005).
7 For academic accounts, see, eg, Strauss, David, ‘Common Law Constitutional Interpretation’ (1996) 63 University of Chicago Law Review 877CrossRefGoogle Scholar; Fallon, Richard, ‘A Constructivist Coherence Theory of Constitutional Interpretation’ (1987) 100 Harvard Law Review 1189.CrossRefGoogle Scholar Most Supreme Court Justices in the United States are practitioners of this multifactorial approach. For further discussion, see below, text accompanying n 117.
8 See also Aharon Barak, ‘Comparative Law, Originalism, and the Role of a Judge in Democracy: A Reply to Justice Scalia’ (Speech delivered at the Fulbright Israel/USIEF 50th Anniversary Symposium: International Influences on National Legal Systems, The Hebrew University of Jerusalem, 29 January 2006) <http://www.fulbright.org.il/index.php?id=664> at 27 July 2007.
9 See, eg, Ginsburg, above n 5.
10 Ibid quoting Judge Patricia Wald.
11 See, eg, Al-Kateb v Godwin (2004) 219 CLR 562, 590–1 (McHugh J) (referring to government submissions in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 316 ('Teoh’) indicating that Australia was party to over 900 international instruments).
12 In 1900 there were reportedly between 35 and 55 independent countries in the world: Colomer, Joseph M, ‘Introduction: Disequilibrium Institutions and Pluralist Democracy’ (2001) 13 Journal of Theoretical Politics 235, 241CrossRefGoogle Scholar: estimate of 55 countries in 1900; Joseph M Colmer, The New Internationalist (1999) 309: estimate of 35 independent countries in 1900; in 1947 there were reportedly 76 countries in the world: Alesini, Alberto and Barro, Robert J, ‘Currency Unions’ (2002) 122 Quarterly Journal of Economics 409CrossRefGoogle Scholar; and today there are somewhere over 190 countries in the world: US Department of State, Independent States in the World (2007) <http://www.state.gov/s/inr/rls/4250.htm> at 27 July 2007: 193 countries excluding Taiwan.
13 The Basic Law (Grundgesetz), Constitution of the Federal Republic of Germany art 25, (English translation available at < http://www.jurisprudentia.de> (follow ‘The Basic Law (Grundgesetz)’ hyperlink) at 14 August 2007) (last updated 2003).
14 See Hailbronner, Kay, ‘Fifty Years of the Basic Law — Migration, Citizenship, and Asylum’ (2000) 53 Southern Methodist University Law Review 519, 521-22.Google Scholar
15 See Constitution of Costa Rica art 7 (emphasis added) (English translation available at <http://www.costarica.com/Culture/Costa-Rica-Constitution/Title-1.-The-Republic> at 20 August 2007).
16 Convergence is not necessarily limited to domestic review under national constitutions. There is at least one country in Europe, Switzerland, which does not have formal judicial review of national statutes under its domestic constitution, but whose court gives effect to the European Convention on Human Rights and Fundamental Freedoms over national statutes in considering human rights claims (for example, involving extradition). See Franz Werro and Irène Schmidlin, ‘La protection de la personnalité et les médias: Une illustration de la rencontre du droit civil et du droit constitutionnel', Droit civil et Convention européenne des droits de l’homme (2006) (Franz Werro édit) 161, 171-72; Dugard, John and Van den Wyngaert, Christine, ‘Reconciling Extradition with Human Rights’ (1998) 92 American Journal of International Law 187, 191CrossRefGoogle Scholar and n 23, 193 and n 46, 207 (noting in particular G v Bundesamt fur Polizeiwesen, No. B74382 (Schweizerisches Bundesgericht March 18, 1994) and Dharmarajah v Ministere Public Federal, Arrets du Tribunal Federal Suisse [ATF] 107 Ib 68 (1981)).
17 See The Constitution of the Argentine Nation 1994 art 75(22) (English translation from Constitutions of the Countries of the World On-Line); see also Levit, Janet Koven, ‘The Constitutionalization of Human Rights in Argentina: Problem or Promise?’ (1999) 37 Columbia Journal of Transnational Law 281, 293.Google Scholar
18 Opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978).
19 Opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
20 Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) ('ICCPR’).
21 Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
22 Opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981).
23 Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
24 Opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951).
25 Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). Article 75 (22) of the Argentine Constitution also refers to the International Convention on the Elimination of all Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); the American Declaration of the Rights and Duties of Man, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser L V/II.71, Doc 6 rev 1 at 17 (1988), and the Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/Res/810 (1948).
26 See Political Constitution of Colombia, 1991 art 93.
27 [1991] LRC (Const) 574, 586 (Botswana High Court) (Horwitz Ag J); affirming Unity Dow v Attorney General (1996) 103 ILR 128 (Botswana Court of Appeal). In that case Assimah JP held that even if the Universal Declaration and African Charter ‘do not confer enforceable rights on individuals,’ they may still be referred to as aids in interpreting the Constitution: at 161; see also Amissah JP describing Botswana as a ‘member of a comity of civilized nations': at 159–61.
28 [1997] 3 LRC 361.
29 Ibid 367.
30 Kirby, Michael, ‘Seventh Annual Grotius Lecture, International Law — The Impact on National Constitutions’ (2005) 21 American University International Law Review 327, 341Google Scholar (quoting Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337, 417).
31 See, eg, Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337, 383–6 (Gummow and Hayne JJ): acknowledging the interpretive canon with respect to ordinary statutes but distinguishing constitutional amendments, and emphasising that the interpretive canon applies to an ordinary statute ‘only in so far as its language permits'; see also Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J) (discussing statutory interpretation); Cf 315 (McHugh J). See generally Cranwell, Glenn, ‘Treaties and Australian Law: Administrative Discretions, Statutes and the Common Law’ (2001) 1 Queensland University of Technology Law & Justice Journal 49.Google Scholar
32 (2004) 220 CLR 1 ('Coleman’).
33 See ibid 87–8, 91–3, 99–100 (Kirby J): upholding the insulting words prohibition in the statute as limited to the utterance in public of ‘threatening, abusive or insulting words that go beyond hurting personal feelings and involve words that are reasonably likely to provoke unlawful physical retaliation.'
34 See also Van Gorom v Attorney General, [1977] 1 NZLR 535, 542–3 (Cooke J) where a lower court judge in New Zealand, in a case involving a 1977 challenge to an administrative policy that discriminated with regard to payment of moving expenses for male and female teachers, wrote:
The Universal Declaration of Human Rights… [and] The Declaration on Elimination of Discrimination against Women… [are not] part of our domestic law[, but] they represent goals towards which members of the United Nations are expected to work… [and thus] ‘might influence the courts in the interpretation of statute law‘[.]… Comparatively new [legal powers]… should not without compelling reason be taken to allow the introduction of a policy conflicting with the spirit of international standards proclaimed by the United Nations documents.
35 Another basis for a normative posture of convergence posture is positivist, coming from the incorporation of international human rights norms as standard commitments in post World War II, as in Argentina. See above n 17.
36 Waldron, Jeremy, ‘The Supreme Court, 2004 Term — Comment: Foreign Law and the Modern Ius Gentium’ (2005) 119 Harvard Law Review 129, 132, 140.Google Scholar
37 David Beatty, The Ultimate Rule of Law (2004).
38 CfSlaughter, Anne-Marie, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99Google Scholar: describing transnational networks of judges engaged in ‘transjudicial’ communication.
39 See Law, David S, ‘Generic Constitutional Law’ (2005) 89 Minnesota Law Review 652.Google Scholar
40 See ‘On Capital Punishment, Decision 23/1990: 31 October 1990 (Hungarian Constitutional Court)', in László Sólyom and Georg Brunner (eds), Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (2000) 126–7; Vicki C Jackson and Mark Tushnet, Comparative Constitutional Law (2nd ed, 2006) 649. A similar story may be told in other contexts. See, eg, Hung, Veron Mei-ying, ‘China's WTO Commitment on Independent Judicial Review: Impact on Legal and Political Reform’ (2004) 52 American Journal of Comparative Law 72CrossRefGoogle Scholar: describing China's move to the development of more independent courts to address obligations under the WTO but also describing substantial obstacles to its success in so doing.
41 543 US 552 (2005).
42 Ibid 621 (Scalia J, dissenting).
43 Ibid 624.
44 Ibid 624–7.
45 (2004) 219 CLR 562.
46 Ibid 589. McHugh J continued; ‘Rules of international law at that date might in some cases throw some light on the meaning of a constitutional provision. Interpretation of the term ‘'aliens'’ by reference to the jus soli or jus sanguinis is an example. But rules of international law that have come into existence since 1900 are in a different category.’ Ibid. It should be noted that McHugh J appears quite knowledgeable about foreign constitutional law and willing to engage with other justices’ discussions, though not necessarily agreeing with claims made about their implications for constitutional interpretation in Australia. See, eg, ibid 587–8: responding to claims made by Kirby J about foreign law.
47 There is some ambiguity in Kirby J's position, as to whether it is only international human rights law or international law more generally that should presumptively influence the interpretation of domestic law. See Kirby, above n 30, 347–8: referring both to ‘international law’ and ‘international human rights law'.
48 Stanford v Kentucky 492 US 361, 369 fn1 (1989) (Scalia J, delivering the opinion of the Court) ('Stanford’).
49 Printz v United States, 521 US 898 (1997) ('Printz’).
50 Ibid 921 fn 11.
51 Fong Yue Ting v United States, 149 US 698, 757 (1893) (Field J dissenting) (emphasis added).
52 Article 27(1) of the Mexican Constitution provides in relevant part:
Only Mexicans by birth or naturalization and Mexican companies have the right to acquire ownership of lands, waters, and their appurtenances (accesiones) or to obtain concessions for the exploitation of mines or waters. The State may grant the same right to foreigners, provided they agree before the Secretariat of Relations to consider themselves nationals with respect to such property and bind themselves not to invoke the protection of their governments in matters relating thereto; …
See Political Constitution of the United Mexican States, in Constitutions of the Countries of the World On-line (Oceana Press) (translation of 2004 official version). For discussion of how Mexico modified the application of this article in agreeing to NAFTA, see Schneiderman, David, ‘Investment Rules and the New Constitutionalism’ (2000) 25 Law and Social Inquiry 757, 765–7.CrossRefGoogle Scholar
53 See Jackson, Vicki C, ‘Constitutional Comparisons: Convergence, Resistance, Engagement’ (2005) 119 Harvard Law Review 109, 113 fn 9Google Scholar: describing Philippines litigation. See also David Schneiderman, Constitutional Approaches to Privatization: An Inquiry Into the Magnitude of Neo Liberal Constitutionalism, in Colin Scott (ed), Regulation (2003) 501, 524–6: describing the Colombian constitutional litigation and a constitutional amendment in response to the Court's decision invalidating two bilateral investment agreements.
54 See Scheppele, Kim Lane, ‘A Realpolitik Defense of Social Rights’ (2004) 81 Texas Law Review 1921, 1941–9.Google Scholar Scheppele describes the Hungarian constitutional court's rejection, on constitutional grounds, of rapid change in Hungary's social welfare laws, which had been enacted to accommodate IMF pressures.
55 Sanchez-Llamas v Oregon, 126 S Ct 2669 (2006) ('Sanchez-Llamas’) (holding that violations of the Consular Convention required neither forgiveness of procedural defaults nor a remedy of exclusion of evidence); Vienna Convention on Consular Relations, opened for signature 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967).
56 (Mexico v United States of America) (Merits) [2004] ICJ 12 ('Avena’).
57 (Germany v United States of America) (Merits) [2001] ICJ 466, 497, 501–03, 515–16.
58 Sanchez-Llamas, 126 S Ct 2669, 2684–5 (2006). The Court also relied on the fact that, under the ICJ statute, the ICJ's decisions are not even binding on the ICJ in another case: at 2684; Cf ibid 2700 (Breyer J dissenting). As Rosalind Dixon has pointed out in email correspondence with the author, there is in principle a distinction between resistance to international law as such and disagreement with particular interpretations or the role of particular institutions. Although much of the Court's analysis in Sanchez-Llamas is based on the latter kind of disagreement, some of the resistance to the asserted role of the ICJ is based on the ground that the international tribunal's judgment as to the treaty obligation of the United States may not be treated as binding the federal courts because, under the US Constitution, the federal courts are to have the final word as to the meaning of treaties: at 2684–5. The opinion, however, arguably leaves open the possibility that a treaty could provide for the binding force of an international tribunal's judgments, by concluding that this treaty had not clearly enough done so: see at 2684 ('Nothing in the structure or purpose of the ICJ suggests that its interpretations were intended to be conclusive on our courts.’)
59 See Martinez, Jenny S, ‘Towards an International Judicial System’ (2003) 56 Stanford Law Review 429, 461–77.Google Scholar Martinez argues for an ‘anti-parochialism’ canon, rejecting ‘the two dominant paradigms of relationships between international institutions and national institutions — the internationalist dream of hierarchical enforcement of international rules and the nationalist fetish of complete sovereign independence', in favour of a ‘third possibility, one of overlapping jurisdiction that leads, yes, sometimes to conflict and indeterminacy, but also to jurisgenerative dialogue': at 466.
60 There are also many examples of what I would call engagement in Australian common law cases dealing with human rights issues, for example, whether appointed counsel may be required to secure a fair trial in Dietrich v The Queen (1992) 177 CLR 292 ('Dietrich’). The ICCPR was noted, and its requirements analysed, but it was not treated as controlling given the absence of implementing legislation: at 304–07 (Mason CJ and McHugh J), 321 (Brennan J), 337 (Deane J), 347–9 (Dawson J). Moreover, several opinions drew on the American case law, in various ways — to provide what Cheryl Saunders might call ‘support’ for views emphasizing the centrality of counsel to a fair trial; or to distinguish it as required by the distinctive US Constitution; or to caution, on the American experience, that a consequence of finding a right to counsel would be to embroil the courts in adjudication over whether counsel was adequate or effective: at 302, 307, 310 (Mason CJ and McHugh J), 333–4, 336 (Deane J), 345–6 (Dawson J), 359 (Toohey J), 371 (Gaudron J); Saunders, Cheryl, ‘The Use and Misuse of Comparative Constitutional Law’ (2006) 13 Indiana Journal of Global Legal Studies 37, 50CrossRefGoogle Scholar (noting, in a detailed study of the Australian High Court's uses of foreign law in decisions concerning a constitutional right of political communication, a category of ‘reliance on foreign law to support or to assist with the interpretation or application of a constitutional provision’).
61 Coleman (2004) 220 CLR 1, 75–6 (Gummow and Hayne JJ) (discussing Cantwell v Connecticut, 310 US 296 (1940) and Chaplinsky v New Hampshire, 315 US 568 (1942)). At issue in Coleman was a challenge to a conviction of violating a statute prohibiting the use of insulting language to another person in a public place, applied to a protester who vociferously and insultingly argued that the police in general, and one particular police officer in particular, were corrupt. The Court, dividing 4:3, struck down the conviction, though on different rationales. The disagreement over the statute is whether it can be read, as, for example, Gummow and Hayne JJ do, to be limited to words likely to provoke a breach of the peace, or whether the statute's having been changed from an earlier version to omit that requirement rules out such an interpretation, as per McHugh J. Gummow and Hayne JJ offered four reasons to narrowly construe the statute: ‘first, that the section creates an offence; secondly, the description of the words as ‘'insulting''; thirdly, the requirement that the words are used to a person; and fourthly, the requirement that the words are used in, or within the hearing of, a public place': at 74. It is in connection with the first of these that the US case law was invoked. Kirby J relied in part on the ICCPR to support a narrow interpretation of the statute, while Gleeson CJ disagreed, arguing against reliance on the ICCPR in interpreting a statute which predated it: at 91–8 (Kirby J); 26–30 (Gleeson CJ).
62 (1992) 177 CLR 106.
63 (1994) 182 CLR 104.
64 (1997) 189 CLR 520.
65 Saunders, above n 60, 56-7, 61; see Choudhry, Sujit, ‘Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation’ (1999) 74 Indiana Law Journal 819, 835-38Google Scholar: describing ‘dialogic’ forms of comparison. The term ‘engagement’ is used here because, unlike ‘dialogue', it does not necessarily imply an answer back.
66 [1990] 3 SCR 697.
67 See generally ibid 738–44 (Dickson CJ, for a majority), 812–19 (McLachlin J, dissenting).
68 South African Constitution art 39(1)(b): courts must consider international law in deciding interpretive questions under Bill of Rights.
69 South African Constitution art 233: ‘When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law'.
70 South African Constitution art 39(1)(c): courts ‘may’ consider foreign law in deciding interpretive questions under Bill of Rights.
71 S v Makwanyane, 1995 (3) SA 391.
72 Ibid 412–13, fn 43–5.
73 Ibid 413 (emphasis added).
74 Ibid 451–2.
75 See ibid 451–2, 454.
76 See also Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169, 1184 (Constitutional Court of South Africa). The South African Court here discussed art 26 of the South African Constitution, which provides a ‘right to access to adequate housing', indicating that the state is ‘(a) to take reasonable legislative and other measures; (b) within its available resources; (c) to achieve the progressive realisation of this right'. The Court compared its own constitution's language with that of the International Covenant on Economic, Social and Cultural Rights, which provides a ‘right to adequate housing', and commented that the idea of a minimum core of rights, developed by the United Nations Committee on Economic, Social and Cultural Rights cannot be used in South Africa yet because there is not enough information about context to determine its application: at 1186–8. The real question under the South African Constitution, the Court wrote, is whether government efforts have been reasonable: at 1188.
77 543 US 551 (2005).
78 492 US 361 (1989).
79 The majority and dissent disagreed over whether the non-death penalty States were to be counted in establishing this trend, and also disagreed as to the implications of the relatively small number of juveniles actually sentenced to death or executed. See Roper, 543 US 551, 564–7 (2005); 609–11 (Scalia J, dissenting).
80 Twenty-five of 37 death penalty states permitted execution of those aged 17 at the time of the offence in Stanford, 492 US 361 (1989); in Roper, 543 US 551 (2005), the number had dropped to 20, and most of these states had not in fact executed juveniles: at 564–5: noting that only three states, Oklahoma, Texas and Virginia, had done so in the last ten years.
81 Roper, 543 US 551, 569–70 (2005).
82 Ibid 574.
83 In so doing the Court departed from the assertion by a plurality in Stanford, 492 US 361, 369, 377–80 (1989), that the Court should not exercise independent judgment but be guided by actions of State legislatures in evaluating whether evolving standards condemned a punishment as unconstitutional. See Roper, 543 US 551, 574–5 (2005): where the Court indicated that the Stanford, 492 US 361 (1989) plurality's rejection of the Court exercising ‘independent judgment’ was itself inconsistent with prior decisions and that Stanford 492 US 361 (1989) is ‘no longer controlling'.
84 Roper, 543 US 551, 575–7 (2005). O'Connor J, dissenting, disagreed with the conclusion, arguing that American trial procedures could effectively distinguish those adolescents capable of having the kind of extraordinary culpability which under US case law warrants imposition of the death penalty from those who did not: at 601–04, 606. The majority argued in response that because so very few adolescents, if any, would possess that degree of culpability, the risk of error by trial courts and juries was unacceptably high given the heinousness of the offences: at 572–4. O'Connor J defended the Court's consideration of foreign and international law in principle, but absent a greater or more settled consensus within the United States, she could not join the majority conclusions: at 604–05.
85 See Rosalind Dixon, The Constitution and Global Values: Different Models of Engagement (unpublished, August 2006): distinguishing between ‘reflexive’ and ‘cosmopolitan’ models of engagement; Rosalind Dixon, A Democratic Theory of Constitutional Comparison (unpublished, May 2007): distinguishing between ‘reflective’ and ‘moral-cosmopolitan’ models of comparison.
86 See Jackson, Vicki C, ‘Transnational Discourse, Relational Authority, and the US Court: Gender Equality’ (2003) 37 Loyola of Los Angeles Law Review 271.Google Scholar
87 Resnik, Judith, ‘Law's Migration: American Exceptionalism, Silent Dialogues and Federalism's Multiple Ports of Entry’ (2006) 115 Yale Law Review 1564.CrossRefGoogle Scholar
88 See, eg, Jackson, Vicki C, ‘Constitutional Law and Transnational Comparisons, The Youngstown Decision and American Exceptionalism’ (2006) 30 Harvard Journal of Law and Public Policy 191, 204–14Google Scholar: distinguishing between foreign and international law.
89 See, eg, Ex parte Alpert; Re Colonel Aird (2004) 220 CLR 308, 347–8, 350 (Kirby J, dissenting): concluding that extraterritorial application of Australian law would not violate international law and that international human rights law does not prevent two sovereigns from punishing the same act.
90 See McIntyre v Ohio Elections Commission, 514 US 334, 381–2 (1994) (Scalia J, dissenting): disagreeing with the Court's holding that a State law prohibiting anonymous pamphleteering violated the First Amendment and arguing that many European countries with healthy democracies prohibited anonymous campaigning to no ill effect.
91 As a matter of interpretive theory, for example, positivism might underlie both postures of convergence (as in Argentina, whose Constitution incorporates several human rights treaties as of constitutional stature and thus requires looking to those instruments in domestic constitutional adjudication) and postures of resistance (as for those in the United States who believe that (a) originalist understandings must control constitutional interpretation and (b) that orginalist understandings preclude resort to contemporary foreign or international law). As a matter of functional uses, some have argued that foreign law may be considered as a reason to uphold, but not strike down, a statute: see, eg, Mary Ann Glendon, ‘Judicial Tourism', Wall Street Journal (New York), 16 September 2005, A14, thereby suggesting a posture of qualified resistance to the use of foreign law except for the specific function indicated.
92 There is arguably a distinction between interpreting a constitution, on the one hand, so as not itself to violate international law and, on the other hand, so as to be consistent with international law. See, eg, Flaherty, Martin, ‘Judicial Globalization in the Service of Self-Government’ (2006) 20 Ethics and International Affairs 477, 480, 493, 495–9.CrossRefGoogle Scholar When an action is prohibited by international law, interpreting a domestic constitution to take no position on the legality of the act is, arguably, not itself in violation of international law if ordinary legislation could be adopted under that constitution to prohibit the act. Convergence models, however, tend to support a presumption of consistency in constitutional interpretation.
93 For example, in the United States, the Senate must give its consent to treaties signed by the President in order for them to be enacted as ‘treaties', and thus part of ‘supreme’ federal law: US Constitution art II, § 2, art VI; a treaty so ratified might be thought to bear some presumption of constitutionality arguably greater than unimplemented treaties in those countries in which the government alone can make binding agreements. In Australia, the government alone can make treaties; as a formal matter it is a ‘dualist’ country, meaning that treaties made by the government ‘do not form part of Australian law unless those provisions have been validly incorporated into domestic law by statute': Joint Statement, The Minister for Foreign Affairs together with the Attorney-General and Minister for Justice, ‘The Effect of Treaties in Administrative Decision Making’ (Press Release, 25 February 1997). See also Mark Jennings, The Relationship Between Treaties and Domestic Law (2003) Australian Government Department of Foreign Affairs and Trade <http://www.dfat.gov.au/treaties/workshops/treaties_global/jennings.html> at 28 July 2007. Yet these formal constitutional differences may be misleading: if, for example, ‘[a]s a general policy, the necessary legislation is put in place prior to the entry into force of a treaty for Australia', (as Jennings above suggests), both executive and legislative components would have ‘spoken’ to the issue and perhaps more clearly than in the US model, in which the consent of only the Senate is sufficient. Other complications — for example, the US doctrine of ‘non-self-executing treaties', under which only some treaties have domestic legal effect in court without implementing legislation, or the controversy in Australia over the effects of unimplemented treaties on interpreting the law, see Joint Statement above (seeking to clarify that mere entry into a treaty by the government does not give rise to a ‘legitimate expectation’ that should influence administrative practice, contra to Teoh (1995) 183 CLR 273) — would need to be addressed in a more complete comparative analysis than is possible here.
94 Thus, for example, in Roper, 543 US 551 (2005), the Court's reliance on the ICCPR — ratified by the US but with a reservation that it was not agreeing to the ban on executing juveniles — and on the Convention on the Rights of the Child — which the US has not ratified — were quite controversial for those reasons. A distinct, but related concern, has arisen in ‘dualist’ regimes: see, eg, Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817, 860–2 (L'Heureux-Dubé J), 865–6 (Iacobucci J): disagreeing with majority's reliance on an unimplemented treaty for the interpretation of the scope of the Minister's discretion. Cf Teoh (1995) 183 CLR 273, 290–2 (Mason CJ and Deane J): relying on an unimplemented convention in interpreting the nature of administrative discretion in light of expectations based on the convention; 302 (Toohey J): also noting the unimplemented convention; 304 (Gaudron J): agreeing with Mason CJ and Deane J on the convention; 315 (McHugh J): agreeing that the unimplemented convention may have force on ambiguous statutory issues but denying that it supports reliance on the doctrine of legitimate expectations in this case.
95 Roper, 543 US 551, 622 (2005) (Scalia J, dissenting).
96 See also Knop, Karen, ‘Here and There: International Law in Domestic Courts’ (2000) 32 New York University Journal of International Law and Politics 501, 525.Google Scholar There may also be differences between decisions of international tribunals and decisions by national courts or legislative bodies concerning the meaning of international treaties. In Sanchez-Llamas, 126 S Ct 2669 (2006) the US Supreme Court indicated that the judgments of the ICJ interpreting the implications of the treaty for procedural defaults in the US system were not binding and entitled at most to ‘respectful consideration’ and appeared to give greater weight to how other countries have interpreted the treaty, finding few, if any, that implement it by a right to exclude evidence. See at 2678 (Roberts CJ); 2707 (Breyer J, dissenting) for discussion of Australian cases under a statute implementing the Vienna Convention on Consular Relations. At the time of the Avena and LaGrand judgments in the ICJ, the US was a party to the Optional Protocol Concerning the Compulsory Settlement of Disputes, opened for signature 24 April 1963, 596 UNTS 487 (entered into force 19 March 1967), consenting to the ICJ's jurisdiction; one might have thought accordingly that the ICJ judgment would be treated as having more weight, though the subsequent withdrawal from the Optional Protocol by the US (in March 2005) appears to have undermined the force of its decision in the eyes of the Court. See Sanchez-Llamas, 126 S Ct 2669, 2685 (2006).
97 Youngstown Sheet and Tube Co v Sawyer, 343 US 579, 651–2 (1952) (Jackson J, concurring).
98 Scheppele, Kim Lane, ‘Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Constitutional Influence through Negative Models’ (2003) 1 International Journal of Constitutional Law 296.CrossRefGoogle Scholar
99 Constitutional Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, pt I, s 1.
100 See Wilkerson v Utah, 99 US 130, 134 (1879).
101 Muller v Oregon, 208 US 412, 419–20 (1908). Muller rejected the constitutional challenge based on the Fourteenth Amendment.
102 Roper, 543 US 551, 626 (2005) (Scalia J, dissenting).
103 521 US 898, 976–7 (1997) (Breyer J, dissenting): arguing that the European experience suggests that the national ‘commandeering’ of State officers to administer national laws is consistent with vibrant federalism. For critical discussion, see Jackson, Vicki C, ‘Narratives of Federalism: Of Continuities and Comparative Constitutional Experience’ (2001) 51 Duke Law Journal 223, 269–70.CrossRefGoogle Scholar
104 384 US 436 (1966).
105 Ibid 486–90 (Warren CJ, delivering the opinion of the Court).
106 Ibid 489. The Court's choice of jurisdictions with which to compare might have benefited from greater discussion, as would the dissenting argument that other features of prosecutorial advantage in those systems lessened the relevance of their experience: see, eg, ibid 521–3 (Harlan J, dissenting).
107 163 US 537 (1896).
108 347 US 483 (1954).
109 Plessy v Ferguson, 163 US 537, 562 (1896) (Harlan J, dissenting).
110 See, eg, McGinnis, John O, ‘Contemporary Foreign and International Law in Constitutional Adjudication’ (2006) 60 Alabama Law Review 801, 803.Google Scholar
111 See Goldsworthy, Jeffrey, ‘Originalism in Constitutional Interpretation’ (1997) 25 Federal Law Review 1, 20.CrossRefGoogle Scholar Goldsworthy also argues that in situations in which original meaning does not resolve an interpretive question, judges may consider ‘general legal doctrines and principles, public policy, and justice, … ‘: at 20; transnational sources might provide insight in this setting as well.
112 See, eg, City of Boerne v Flores, 521 US 507 (1997): invalidating the Religious Freedom Restoration Act, 42 USCS (1993); United States v Morrison, 529 US 598 (2000): invalidating the private cause of action for gender-motivated assault provided in the Violence Against Women Act, 42 USCS § 13981 (1994).
113 For discussion, see Jackson, above n 86, 330–7. Moreover, the constitutional lives of democratic polities do not develop in isolation from events elsewhere. Foreign constitutional developments may shed light on how to understand common commitments: see, eg, ibid 337–9.
114 Much rests on the phrase ‘properly and fairly considered'. As discussed elsewhere, appropriate use of foreign or international law in domestic constitutional interpretation will depend, inter alia, on (1) the nature of the domestic issue, (2) the particular transnational source (eg, whether it is binding international law, or if foreign law, with what degree of consensus or basis for selection), and (3) fair use of sources, including close attention to comparability issues in the use of foreign law: see, eg, Jackson, above n 53, 124–8. For an argument that resort to international or comparative law may contribute to impartiality in decision-making, see ibid 118-20.
115 See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Geoffrey R Stone, Louis Michael Seidman, Cass R Sunstein, Mark V Tushnet and Pamela S Karlan, Constitutional Law (5th ed, 2005) 61.
116 Breyer, above n 6.
117 Analysis here draws on work by Strauss, above n 7; Fallon, above n 7; Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982); Philip Bobbitt, Constitutional Interpretation (1991).
118 See Glenn, H Patrick, ‘Persuasive Authority’ (1987) 32 McGill Law Journal 261, 263, 287–8Google Scholar; see also Harding, Sarah K, ‘Comparative Reasoning and Judicial Review’ (2003) 28 Yale Journal of International Law 409.Google Scholar
119 See Young, Ernest, ‘Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation’ (1994) 72 North Carolina Law Review 619Google Scholar; Strauss above n 7, 891.
120 See also Bobbitt, above n 117; Louis Michael Seidman, Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (2001).
121 Some of the appeal of these versions of originalism sounds in a kind of formalism believed to be valuable in constraining judicial discretion. While formalism is often invoked to support, eg, rules over standards, its application to the sources to be considered in deciding whether to formulate a rule or a standard is a different matter. One might imagine that formalists might favour strong originalism, strong commitments to stare decisis, or other relatively narrow vectored interpretive approaches that are believed to increase the predictability of law. But it is a complex matter whether limiting sources increases predictability, and one might think that testing a possible legal rule against multiple sources is likely to yield better, and no less determinate, results.
122 US Constitution art I (two Senators for each state); art V (no change in equal suffrage in Senate without the consent of the affected states). (Rounded population figures are from 2006 estimates by the US Census Bureau: see <http://quickfacts.census.gov/qfd/states/06000.html> at 21 August 2007).
123 See Adler v Ontario [1996] 3 SCR 609.
124 Thus, for example, in the United States the constitutional provision giving the Senate ‘sole Power to try all Impeachments’ has been interpreted to leave to the Senate the determination of the procedures for trying impeachment charges. See Nixon v United States, 506 US 224 (1992); US Constitution art I, § 3, cl 6. Moreover, the allocation of powers to give effect to treaty obligations may vary from one constitution to another; for courts to interpret a constitution itself to be consistent with all treaty obligations may be in tension with constitutional allocations of responsibility for treaty implementation to other branches. See also above n 92.
125 Neuman, Gerald L, ‘Human Rights and Constitutional Rights: Harmony and Dissonance’ (2003) 55 Stanford Law Review 1863, 1891–5.Google Scholar
126 Henkin, Louis, ‘US Ratification of Human Rights Conventions: The Ghost of Senator Bricker’ (1995) 89 American Journal of International Law 341, 348–9.CrossRefGoogle Scholar
127 Cf John Bell, ‘Comparing Public Law', in Andrew Harding and Esin Örücü (eds), Comparative Law in the 21st Century (2002) 235, 235–48 (discussing the historic and institutional particularities of public law).