David Randolph Smith

Embracing Foreign Law: Smite the Know-Nothings


Trappings of Americana--an eagle, the flag--wreath:
the idealized image of Citizen Know-Nothing.
Behind the zeal lay a deep xenophobia

  • 4/2/05: In Roper v. Simmons, (U.S. March 1, 2005) the Supreme Court, in a 5-4 decision, upheld a decision by the Missouri Supreme Court that the Eighth Amendment's prohibition against cruel and unusual punishment rendered the death penalty for juveniles unconstitutional. The majority relied in part on an international consensus against executing juveniles (the U.S.A., being the only nation in the world to do so). Justice Scalia vigorously dissented. House and Senate Republicans are promoting a resolution (H.Res. 97; S. Res. 92) that judicial determinations regarding the meaning of the laws of the United States should not be based on judgments, laws, or pronouncements of foreign institutions. Yesterday Justice Ginsburg spoke to the American Society of International Law in Washington in strong defense of the use and citation of the laws of other nations. Justice Ginsburg's position is absolutely correct and completely consistent with the long tradition of the Brandeis brief. In 1908, in Muller v. Oregon, Louis Brandeis successfully argued that wages and hours legislation for women workers in commercial laundries was constitutional. In his brief he citied and relied upon statistical data concerning social conditions. The “Brandeis brief,” is well recognized as a legal document full of citations regarding social data as opposed to the traditional citation of cases and statues. In Roper, the Supreme Court, in the tradition of the Brandeis brief, rightly referred to the clear consensus of other civilized nations:
    • "Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”
  • Justice Ginsburg gave a strong defense of the judicious use of foreign law sources:
    • "Judges in the United States are free to consult all manner of commentary," She cited several instances when the logic of foreign courts had been applied to help untangle legal questions domestically, and of legislatures and courts abroad adopting United States law. Fears about relying too heavily on world opinion "should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey," In her speech, Justice Ginsberg criticized the resolutions in Congress and the spirit in which they were written. "Although I doubt the resolutions will pass this Congress, it is disquieting that they have attracted sizable support," she said."The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification," Justice Ginsburg said. "Even more so today, the United States is subject to the scrutiny of a candid world," she said. "What the United States does, for good or for ill, continues to be watched by the international community, in particular by organizations concerned with the advancement of the rule of law and respect for human dignity. "Justice Ginsburg Backs Value of Foreign Law" (New York Times, April 2, 2005).