Jackson, Vicki C --- "Transnational Challenges to Constitutional Law: Convergence, Resistance, Engagement" [2007] FedLawRw 7; (2007) 35(2) Federal Law Review 161
TRANSNATIONAL CHALLENGES TO CONSTITUTIONAL LAW: CONVERGENCE, RESISTANCE, ENGAGEMENT
Vicki C Jackson[*]
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.
There are, of course, different kinds of debates in different countries. In some countries, the debate is not about whether foreign and international law may be considered, but how and when, and with what weight. But in the United States, the debate for many is still over whether contemporary foreign and international law may be considered in constitutional interpretation.
There is a certain asymmetry in this discussion in the United States. Opponents of using foreign or international law in constitutional adjudication are impassioned. Justice Scalia memorably wrote in one recent dissent that the American people's views were, 'thankfully', not always those of the Europeans.[1] A recent Harvard Law Review Foreword, written by Judge Richard Posner, [2] fiercely attacked the Supreme Court's reference to foreign and international law in Roper v Simmons,[3] a 2005 decision holding unconstitutional the juvenile death penalty. In the United States Congress, legislation has been introduced to prohibit the Court from referring to foreign or international law, except for English law relevant to the original intent of the Framers.[4]
Opponents raise several kinds of legal objections: First, for 'originalists', who favour interpreting the Constitution in accord with its meaning at the time of enactment, contemporary transnational sources are simply irrelevant. Second, from a formalist perspective, there is concern that considering foreign law would unduly expand the discretion of judges. Third, from a professional perspective, US-trained judges and lawyers are said to lack expertise in foreign and international law sufficient to make appropriate choices, among a wealth of transnational law, of what to use. More broadly, objections from democracy, popular sovereignty and American 'exceptionalism' are asserted, the claim being that anything not 'made in America' is irrelevant, illegitimate, or even inconsistent with a kind of constitutional patriotism.[5]
Defenders of the use of foreign and international law are less passionate, for they tend to see it as merely one of many factors or considerations, and not a central one at that. Whether a judge is a 'purposivist', committed to interpreting the Constitution to advance one or more large-scale and overarching purposes attributed to the document (for example, 'active liberty'),[6] or a common law constitutionalist concerned with continuity of decision-making within a complex matrix of precedent and other sources,[7] no Supreme Court Justice in the United States has, for example, argued in favour of a presumption of interpreting constitutional law in accord with international law, as Kirby J has in Australia, and reference to foreign and international law has almost never been a dominant motif in the United States case law.[8] Rather, its mild-mannered supporters may note that references to foreign and international law have long roots in the United States Supreme Court's own jurisprudence;[9] they draw analogies to judges' resort to academic literature, denying the binding force of the transnational; they suggest that it could do no harm and might illuminate the context of issues to understand what other democracies, or wise judges elsewhere, or international legal instruments with broad support have to say. As Ruth Bader Ginsburg J recently explained:
We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication … of 'common denominators of basic fairness governing relationships between the governors and the governed.'[10]
On two points in this debate one might find considerable agreement: there are large common denominators and there is an enormous amount of transnational material that poses real challenges of proper understanding and appropriate usage. The transnational legal environment of today, compared with 50 or 100 years ago, is characterised by the existence of vastly more international law, concerning a far larger arena of topics, including many human rights issues that are also typically addressed by domestic constitutional law.[11] There is also more constitutional law than 100 or even 50 years ago — there are both more national states and increased resort to written constitutions or quasi-constitutional legal instruments.[12] Because of the influence of human rights instruments at the international and regional levels, and the influence of pre-existing constitutions on those international instruments, there is now considerable overlap in the concepts and language of many of these national constitutions.
These many bodies of international and foreign law are also now more accessible than ever before. And this fact, in a sense, forces a choice upon constitutional interpreters. The option of a certain kind of insularity — of being ignorant of transnational public law developments — is diminishing. National courts are increasingly being asked to consider transnational law and, thus, have to take positions on the relevance of foreign and international law in domestic constitutional adjudication.
As noted, this paper has two goals: first, it argues that, as a positive matter, courts around the world have taken at least three different postures towards these transnational sources — postures of convergence with the transnational, postures of resistance to transnational influence and postures of engagement with transnational sources. Second, the paper seeks to explore, in a very preliminary way, the relationship of these postures to interpretive theory and the role of constitutions, and in doing so to suggest why — at least for some countries, including the United States — a posture of engagement may be a better fit than one of resistance or convergence.
I CONVERGENCE, RESISTANCE, ENGAGEMENT
A brief sketch of these three postures, their various forms, justifications, and motivations, is provided below.
Convergence: Some courts seem to favour constitutional interpretations that converge either with international law or with emerging transnational consensus or 'best practices' among constitutional courts as to reasoning or result. As will be shown, this does not all come from courts' initiative: some constitutional convergence may be authorised or required by constitutional texts. And in some cases convergence may result from influences exogenous to law or the postures of the courts.
Some post-World War II national constitutions incorporate international law — or some parts of international law — as superior to statutes. So, for example, in Germany, The Basic Law provides that '[t]he general rules of public international law … take precedence over statutes and directly create rights and duties for' individuals,[13] although in practice this provision is given a somewhat restrictive meaning.[14]
Article 7 of the Costa Rica Constitution likewise provides, '[p]ublic treaties, international agreements and concordats duly approved by the Legislative Assembly shall have a higher authority than' statutes.[15] In these countries, by virtue of the constitution, international law functions — like constitutional law — to trump contrary statutes.[16] Outside of Europe and the force of the European Convention on Human Rights and Fundamental Freedoms, at least one national constitution — the 1994 Constitution of Argentina[17] — specifically incorporates a number of human rights instruments as having constitutional status, including the American Convention on Human Rights,[18] the International Covenant on Economic, Social and Cultural Rights,[19] the International Covenant on Civil and Political Rights[20] and its Optional Protocol,[21] the Convention on the Elimination of All Forms of Discrimination against Women,[22] the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,[23] the Convention on the Prevention and Punishment of the Crime of Genocide[24] and the Convention on the Rights of the Child.[25]And the 1991 Constitution of Colombia provides that the rights set forth therein should be interpreted consistently with those international human rights treaties which Colombia has ratified.[26]
Even without such explicit constitutional mandates, national courts sometimes have expressed a sense of obligation to construe their domestic laws in accordance with international human rights law and the principles of the United Nations. In Unity Dow v Attorney General in Botswana, different judges referred to international instruments to construe an ambiguous equality provision to prohibit gender discrimination in the capacity of mothers and fathers to pass on citizenship to their children: one judge wrote, 'I bear in mind that signing the Convention does not give it the power of law in Botswana but the effect of the adherence by Botswana to the Convention must show that a construction' of section 15 should extend, 'in harmony with the convention' to ban sex discrimination.[27] Similarly, in Vishaka v Rajasthan,[28] the Indian Supreme Court construed the national Constitution in light of the principles of a ratified, but not yet implemented international convention, to require the government to act against sexual harassment and rape, writing that the international convention 'must be read into' the fundamental rights provisions of the Constitution 'to enlarge [their] meaning.'[29] National governments' signings of human rights treaties were thus invoked by courts in support of an interpretive presumption on questions of constitutional law.
Justice Michael Kirby has been an important voice in favour of interpreting constitutions, as well as statutes, in a manner consistent with international human rights law. In Kartinyeri v Commonwealth (as in other cases and academic writing), Kirby J argued that:
Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation that would involve a departure from such rights.[30]
This position is an extension of the interpretive canon that statutes be construed, to the extent that their language permits, to be consistent rather than inconsistent with international law;[31] in Coleman v Power,[32] where a protester against police corruption was arrested and convicted, under a statute banning insulting words in public, Kirby J read the statute — in light of both the Australian implied constitutional right of political communication as well as international law — not to apply in the absence of a threat to the peace.[33] Significantly, in his opinions (and in opinions by other judges in other countries), we see the idea that in interpreting national constitutions, as well as sub-constitutional law, courts should work towards achieving the goals of these human rights instruments.[34]
Aspirations towards convergence or harmonisation of national constitutions with the protection of basic human rights reflect the influence of international human rights instruments, including the Universal Declaration of Human Rights, and their normative underpinnings — including a commitment to universal human dignity and to the use of law to prevent the grotesque barbarities of which modern history shows governments are capable. These 'cosmopolitan' arguments for convergence are also related to the normative value of international law and the stake national legal systems are believed to have in the development and support of international law.[35] While this normatively cosmopolitan version of convergence may be used to signal and enforce a break from authoritarian or racist past regimes, we should also recognise that some convergences in constitutional texts or judicial opinions may be less related to deep normative commitment to human rights and more the product of the influence of human rights instruments as legally available forms, as constitutional archetypes, something a constitution must have regardless of how well understood or deeply committed the polity may be to their substance.
Be that as it may, a somewhat different idea of convergence consists of a blend of functionalism and progressivism — the idea that when many countries' legal decisions tend to converge, it is likely that they have produced a better answer to a common problem. Jeremy Waldron analogised decentralised processes of convergence to an 'established body of scientific findings', suggesting that a legal consensus that emerges from many countries deliberating over a common problem represents an 'accumulated legal wisdom'.[36] Relying on a decentralised search for best answers assumes a degree of functional commonality and implies that once a trend or consensus emerges among different courts addressing the same issue, it is sensible for other courts to give some weight to their result. So, blending these approaches, David Beatty has argued both that most courts use the idea of proportionality as 'the ultimate rule of law' in measuring the constitutionality of government action and that it is the best measure of constitutional justice as a normative matter.[37]
Convergence might also result from some transnational understanding of the role of judges. If the central figure is the judge, not the national constitution, and if the judge's expert role is a universalised one of protecting minority or other human rights, then one might expect a transnational community of judges to converge on 'best practices' answers to common problems.[38]
Influences towards convergence may also arise from institutional similarities in the position of constitutional court judges who, regardless of their normative stance on human rights, are engaged in a common enterprise of constitutional adjudication. As David Law has suggested,[39] this enterprise places constitutional court judges in the similar but challenging position of having to justify either their invalidation of government action or their rejection of individual claims of right, inviting common modes of reasoning and discourse.
And finally, economic and political incentives may operate to push countries to converge on particular constitutional positions that more powerful nations or supranational bodies require as a condition for membership, or for other rewards. The Hungarian Constitutional Court's very first decision, in 1990, invalidating the death penalty, was made both for reasons of principle and, according to many observers, with an eye on Hungary's potential membership in the European Union.[40]
Thus, convergence may be understood in several ways — as a normative posture in constitutions and courts, or as a quasi-normative, quasi-functional mode. It may arise from normative theory, from institutional factors (relating to the role of courts and judges) and from exogenous forces (of political economy) pushing in this direction.
Resistance: The transnational forces that tend to produce convergence, however, may also provoke a very different posture, a posture of resistance or indifference to foreign or international law, even as 'persuasive authority'. In the United States, strong arguments are made that, except in narrowly defined circumstances (involving, for example, transnational law that existed at the time of constitution-making that sheds light on original meanings), these sources are irrelevant to constitutional interpretation. As mentioned, this posture is prominently associated in the United States with the position of Scalia J. In 2005, the United States Supreme Court in Roper v Simmons held that the execution of a defendant convicted of capital murder committed before the defendant was 18 violated the 'evolving standards of decency' embodied in the Eighth Amendment's ban on 'cruel and unusual' punishments, departing from a decision made 16 years earlier rejecting the same constitutional challenge.[41] Dissenting from and criticising the majority opinion, Scalia J wrote, '[t]hough the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage', invoking arguments from democracy.[42] For Scalia J, democratic governance could be reconciled with an 'evolving standards' test only by hewing to 'objective criteria' of the laws and practices of the US States. However, he claimed, '[t]he basic premise of this Court's argument', was 'that American law should conform to the laws of the rest of the world ... ', a proposition, he says, that 'should be rejected out of hand'.[43] The laws of many other countries differ dramatically — the United States is unique in its exclusionary rule, its separation of church and state, and close to unique in the liberality of its abortion jurisprudence, he argued, but the Court did not consider transnational legal sources in an across the board way in resolving those constitutional issues, raising concerns about unprincipled discretion to consider foreign law only when it supports one's views.[44]
There are echoes of Scalia J's position on both sides of the debate between McHugh and Kirby JJ in Al-Kateb v Godwin decided by the High Court of Australia.[45] Kirby J, as mentioned before, adhered to his position that when there are open questions of constitutional law, the Constitution should be construed, if possible, in accord with established principles of international human rights law, a proposition he has defended on normative and instrumental grounds. Responding to Kirby J's argument, McHugh J instead argued that 'courts cannot read the Constitution by reference to the provisions of international law that have become accepted since the Constitution was enacted in 1900',[46] suggesting — as has Scalia J — that contemporary international law is irrelevant to what the words of the Constitution meant at the time of their adoption. On the other hand, Kirby J, like Scalia J, has sought to articulate a principled position that constrains judging — for Kirby J it is that, in all cases involving ambiguous interpretive questions, the Constitution should be construed in accord with international human rights law to the extent that a rule exists;[47] Scalia J argues for a principled and constraining position that contemporary foreign and international law are irrelevant. So in a sense, convergence and resistance — as favoured postures — are mirror images of each other.
Examples of resistance can be found in a number of opinions in the United States. Thus, for example, the Court in 1989 wrote 'it is American conceptions of decency that are dispositive', rejecting the relevance of world practice or opinion on the constitutionality of the juvenile death penalty.[48] In his opinion for the Court in a federalism case,[49] Scalia J wrote that comparative constitutional knowledge was relevant in writing, but not interpreting a constitution.[50] Going back to the 19th Century, when the majority relied on assertions about the powers of sovereigns in the world community as justifying plenary control over immigration (including the power to exclude based on race or national origin), the dissenters wrote, passionately, that the United States 'takes nothing from the usages or the former action of European governments'.[51]
Moving out of the United States, it is worth noting that just as constitutional texts themselves can lay down a positive basis for postures of convergence, so too, can constitutional texts lay an explicit foundation for resistance to the transnational, especially in the economic sphere. Mexico's Constitution has a 'Calvo' clause, intended to disable foreign parties from relying on their foreign status to interfere with domestic decisions about property interests.[52] In the Philippines, the Supreme Court, relying on its constitutional provisions reserving control of natural resources to the government, found a statute authorising a service contract for the management of mining production unconstitutional; it later reversed itself.[53] On Professor David Schneiderman's account, many of these constitutional resistances to globalised free trade norms are unsuccessful over the long term, yet as a study of the Hungarian court's decision striking down of IMF-inspired welfare reform has suggested, reliance on national constitutions to resist pressures of international economic development may restructure debate and decision-making in significant ways.[54]
So constitutional resistance should not necessarily be associated only with the views of some United States jurists. Nonetheless, the willingness of the United States Court to resist is notable, though as a major power perhaps not surprising. Last Term the Supreme Court of the United States declined to interpret United States obligations under the Vienna Convention on Consular Relations in accordance with the views of the International Court of Justice ('ICJ').[55] Defendants in serious criminal cases had not received notification that they could seek assistance from their consuls, as required by the Vienna Convention. In at least one case, serious prejudice assertedly resulted, but relief in the lower courts was denied. The ICJ had previously held, in other cases brought against the United States (in Avena and Other Mexican Nationals[56] and LaGrand[57]), that the 'full effects' provision of article 36 of the Consular Convention in some circumstances required judicial re-consideration of the violations. The United States Court disagreed, and rejected arguments that, because the United States was a party to the Convention and (at the time of the ICJ decisions) to its Optional Protocol, it was bound to follow the ICJ holding, in part because Article III of the United States Constitution vests judicial power in the Supreme Court, a power that extends to having the final word on the interpretation of United States treaties.[58] So we see a number of examples of resistance, based on a sense of national sovereignty — over resources, over law — embodied in constitutional interpretations.
Engagement: Under the third model, engagement, a judge is not resistant in principle to considering international or foreign law. But neither does she necessarily presume in favour of interpreting the constitution in accord with evolving transnational standards. The engagement model values the insights of foreign and international law, but without necessarily placing a thumb on the scale in any one direction.[59]
An example already mentioned is Coleman, where Kirby J relied on the ICCPR, as well as constitutional and common law principles, to give a narrow construction of the statute as not reaching conduct not likely to provoke a violent reaction.[60] Gummow and Hayne JJ reached a similar result (overturning the conviction for use of insulting words and saving the statute's constitutionality by reading it down), but not because of an interpretive presumption in favour of readings that accord with international law. Rather, their Honours considered United States case law interpreting the explicit provisions of the First Amendment in support of one of their arguments in favour of a limited reading of the scope of the prohibition on the public insult statute — that legislative restraints on free expression through criminal law must be clearly put and narrowly construed.[61] This use is consistent with the findings in Professor Cheryl Saunders' study of Coleman's predecessors — Australian Capital Television Pty Ltd v The Commonwealth,[62] Theophanous v Herald & Weekly Times Ltd[63] and Lange v Australian Broadcasting Corporation cases,[64] where the High Court initially developed the implied freedom of political communication and its implications for common law defences — that references to foreign law were predominantly 'dialogic'.[65]
Another example of engagement can be found in the Canadian opinions, majority and dissent, in R v Keegstra, [66] a case narrowly upholding a ban on willfully promoting hatred of groups through public speech. The majority spent considerable time laying out the strands of United States case law, and explaining why, if United States case law did prohibit government bans on hate speech, the Canadian constitutional context differed in its commitments to multiculturalism and equality, and required a different result. The dissenters also discussed the United States case law, arguing that Canadian experience under the very statute in question confirmed the insight of the United States case law that the balance of harmful and good effects from restraints on speech, in their actual applications, was in the negative.[67]
There is yet another, stronger version of engagement, embodied in the South African Constitution's directive that the courts must consider international law in interpreting the Bill of Rights.[68] This provision does not specify the hierarchical status of international law, but it creates an obligation to consider international law. This obligation to consider may be contrasted with the presumption the South African Constitution requires to interpret statutes in accord with international law,[69] and also with the explicit constitutional license, but not mandate, to consider foreign law in deciding constitutional questions.[70] So, on this model, there is a normative obligation to consider but not necessarily to converge with international law, and an authority to consider foreign law.
In S v Makwanyane, a 1995 case, the new South African Constitutional Court held the death penalty unconstitutional under the Interim Constitution.[71] At this time, as Chief Judge Chaskalson noted, the world was fairly evenly split among so-called retentionist and nonretentionist jurisdictions.[72] He found the reasons and judgments of 'international and foreign authorities … [to be] of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue', a reason at the core of a deliberative model of engagement. He went on to say that such sources may 'have to be considered because' the Interim Constitution required that '[i]n interpreting the provisions of this Chapter a court of law shall … where applicable, have regard to public international law applicable to the protection of the right entrenched in this Chapter, and may have regard to comparable foreign case law'.[73] Concluding that capital punishment, unlike torture, was not 'absolutely prohibited' by international law,[74] he found himself more persuaded, for example, by the dissenting than the majority views in the United States case law, especially in the context of the transformational goals of South Africa’s new Constitution.[75] Many jurisdictions' approaches were considered, all as an aid to clarifying what South Africa's new constitutional commitments mean.[76]
As a final example of engagement, consider the United States Supreme Court decision in Roper.[77] Contrary to Justice Scalia's suggestion that the majority sought to converge with world opinion, it is evident that foreign and international law were looked to, not as binding sources of authority, but as confirming a conclusion the Court had reached based on its analysis of domestic law and precedents. By way of background, Roper overruled, by a 5:4 vote, an earlier and equally close decision, Stanford,[78] which had upheld capital punishment for persons aged 16 or 17 at the time of the offence. Critics accuse the Roper Court of being lawless and political, of either using transnational law as a fig leaf to cover their personal preference or of being too much under the sway of foreign opinions and international law. These critiques fly in the face of what the majority said about the influence of foreign and international law and the structure of the opinion itself.
First, under established United States doctrine, the Eighth Amendment does not prohibit only those punishments regarded as 'cruel and unusual' in 1791, but also bars those punishments which come to be so regarded. A punishment could become cruel and unusual if there was a trend and consensus against its use in the State legislatures and in practice, both of which, the Court found, existed with respect to imposition of the death penalty for offences committed before the defendant was 18.[79] (Although more States prohibited the juvenile death penalty than had done so at the time of Stanford,[80] the Roper Court departed from the prior decision's controversial exclusion of States prohibiting all forms of the death penalty in determining what the dominant view of the States was). Second, the Court considered data about the capacities of adolescents; their greater capacity to be influenced, their lower maturity, and the possibility of their personality or character changing over time, finding that these characteristics distinguished them from adults in meriting the death penalty.[81] Third, the Court surveyed the use of different age limits by the States for a variety of responsibilities and rights, finding that 18 was predominantly used to demarcate the age of responsibility from the age of lesser responsibility.[82] Based on these factors, the Court made its own independent assessment of whether imposition of the penalty was cruel and unusual as applied to adolescent offenders, concluding that it was.[83]
Finally, the Court considered foreign and international law, which provided 'confirmation' of its conclusions drawn from internal sources, by the overwhelming consensus in law and the abandonment in practice of imposing the death penalty on those under 18[84] — a consensus which distinguishes this issue from many other issues on which foreign or international law might be thought relevant. But the Court's treatment of this point was one of engagement and consideration, not one which placed primary import on the transnational consensus or treated it as binding.
Engagement itself has at least two modes, associated with different justifications and functions for engagement, and analysis here owes a debt to ongoing work by Rosalind Dixon for help in clarifying these modes.[85] In the one mode, which might be called deliberation-enhancing engagement, the focus is primarily on the degree to which considering international or foreign material can aid the judge in a deeper, or better, appreciation of her own constitution and in attaining that distance from her own situation which may promote more impartial decision-making. Engagement may involve consideration of both similar and distinctive constitutional practices. In this mode there is truly no 'thumb on the scale,' and international law (especially international law not yet binding on the country by virtue of its own domestic mechanisms) is considered almost as a form of comparative law, rather than as having a one-way influence on the direction of domestic law.
A second mode of engagement is connected to some of the same impulses behind what might be called cosmopolitan convergence, but with a greater emphasis on process than substance. What is important here is that foreign and especially relevant international law must be considered, though not necessarily followed. On this view, elsewhere described as recognising the 'relational authority' of foreign courts' decisions on issues of domestic constitutional law,[86] foreign and international law, especially on human rights, have a decided gravitational pull, if they concern parallel commitments and decisions and especially if they represent a consensus or decisive trend. This pull (whose bases are too complex for analysis here) demands consideration, though not necessarily convergence.
Some caveats are now in order. First, analysis thus far has primarily concerned courts' attitudes, which are only one of the factors influencing the direction of the law: there may be convergences of law in some areas, not because of courts' decisions, but as a result of other forces. Second, courts may be influenced by other courts or international law in what Judith Resnik has termed a 'silent dialogue', [87] so that there may be convergences (or resistances) that are motivated by comparative judgments though not explained in those terms. Third, legal practice on the ground may differ greatly even when judges articulate similar legal norms. Fourth, different considerations may apply to referring to foreign law, on the one hand, and international law, on the other, in constitutional interpretation.[88]
Fifth, although these three categories — of convergence, resistance and engagement — are a useful way of understanding what is happening, they are necessarily broad, and do not capture all the nuances that exist; one can find multiple postures running through the jurisprudence of the same court, or even at times of the same judge. Actual positions of courts, and justices, are often more subtle than any overarching effort at categorisation can capture. For example, as noted earlier, Kirby J's position is not one for convergence in all circumstances, but only where the domestic interpretive issue is fairly described as open and there is a clear rule of international law.[89] Scalia J has on occasion considered foreign legal experience in constitutional adjudication.[90] So while categorisation is useful, it is likely to be something of an overstatement to say that this court or that tends to the convergence or engagement or resistance mode, or to try to categorise any judge's opinions under a one word banner.
A final caveat: the modes of convergence, resistance, and engagement are what might be called 'postures', which are not the same as interpretive theories, nor are they the same as the different kinds of functional uses that may be made of foreign and international law, though they may be associated in some ways with some of them.[91] Rather, these categories — of convergence, resistance and engagement — are helpful in identifying a more general attitude towards the use of transnational sources in domestic adjudication. With these caveats in mind, the next section goes on to discuss the appeal of a posture of engagement.
II ENGAGEMENT DEFENDED
What is the benefit to judges and lawyers of engaging with foreign or international law in constitutional interpretation? The answers to this question may seem self-evident, but at least in the United States it is a live question, to be briefly addressed here.
First, with respect to international law that has become binding on a country, if an interpretation of the constitution would put the country in violation of its international obligations, or even if the interpretation would merely make it more difficult to comply, it seems only sensible for judges to be aware of such consequences and consider alternative interpretations. One of the many purposes of a constitution is to enable a country to make and fulfil international commitments, and it is consistent with this purpose to be concerned about the relationship between constitutional interpretation and binding international agreements. While on a model of convergence a strong presumption would apply to interpret the constitution in a manner consistent with international legal obligations,[92] on an engagement model what is required is serious consideration. In such consideration, the manner by which an international obligation is formed or assumed might bear on its weight.[93]
In the United States, however, much of the controversy over international law has arisen not with respect to international law that is clearly binding, but with respect to conventions the United States has not signed, or has taken reservations to, or where the United States has 'persistently objected' in an effort to prevent customary international law from binding the United States.[94]Scalia J was particularly critical of the majority in Roper for referring to international conventions that the United States had not ratified or had reserved on the juvenile death penalty.[95] But the Court there was viewing the international legal instruments more as a form of foreign law, available for comparative purposes but plainly not binding.[96]
Apart from being mindful of whether interpretations would place its country in violation of international obligations, there are other benefits to a court, deciding a constitutional question, in considering transnational legal sources. First, there may be functional similarities between the legal terms of or the legal values protected by different constitutions. Parallel provisions, such as freedom of expression, or non-discrimination, are likely to give rise to similar kinds of challenges. Thus, courts may find it helpful to read other courts’ opinions, not necessarily to 'receive' or 'borrow' solutions, but rather to test out ones supported by their own domestic traditions against others' experiences and reasoning. Constitutions that have some historical connection to another country's law may benefit from looking not only for 'originalist' understandings but to see how law from a common root has developed — again, not for the purpose of copying but for testing a judge's understanding of what the law has come to mean in her own jurisdiction. Looking outside may also offer different — but interpretively plausible — ways of approaching a problem shared by others.
Second, engagement with foreign law and experience can be helpful in a negative way — by ruling out interpretive choices that have worked poorly in analogous countries. Thus, Justice Robert Jackson in his famous opinion in the Youngstown Steel case in the United States, referred in some depth to the constitutional experiences of Weimar Germany, the Third French Republic and Britain, reasoning that it would be too dangerous to recognise emergency powers in a president who could himself declare the state of emergency.[97] The adverse consequences of the Weimar Constitution's authorisation to the President to declare an emergency was an object lesson, a 'negative' or, in Kim Scheppele's words, 'aversive' precedent.[98]
Third, some constitutional texts may invite their interpreters to consider a range of practices, especially those texts embodying widely shared norms. Canada's requirement that legislative limits on rights protected by the Charter of Rights and Freedoms be 'demonstrably justified in a free and democratic society' is arguably an invitation to compare with other free and democratic societies.[99] Other constitutional language — 'cruel and unusual punishments', or 'unreasonable' searches or seizures in the United States Constitution's Eighth and Fourth Amendments, respectively — might likewise invite comparison. Indeed, notwithstanding recent controversy, the United States Court from its very first Eighth Amendment case in 1879 has considered practices in other countries in assessing claims that a particular punishment is banned as cruel and unusual.[100] In the height of the Lochner era, in 1908 the famous 'Brandeis' brief relied on experience in other countries to persuade the Court to uphold protective legislation for female workers as reasonable.[101]
On this account, though, the challenge remains to determine what countries are comparable and for what purposes. In Roper, Scalia J was particularly critical of the majority's reliance on English law, finding it 'beyond comprehension'[102] — the United Kingdom had joined the European Convention and its law had developed quite differently from the US, he argued. But since the root of the Eighth Amendment ban on cruel and unusual punishment was the English Declaration of Rights of 1689, the majority not unreasonably disagreed. But other comparisons, including, for example, Breyer J's reference to European federalisms in Printz v United States,[103] raise harder questions.
More generally, the constitutional practices of other nations can provide normative insight into how one’s own should be construed. This normative insight may come from a consensus; it may come from a particularly persuasive comparison; a singularly wise judicial opinion; or a powerful negative example. Transnational sources can be interlocutors, testing understanding of one's own traditions by examining them in the reflection of others. In Miranda v Arizona,[104] an iconic case requiring that certain warnings be given to suspects before custodial interrogations, the Court described in detail the practices in several foreign countries[105] and then commented that if England, Scotland, Ceylon and India provided protection in custodial interrogations, the United States Constitution should do 'at least' as well.[106] A comparative perspective can hold up a helpful mirror to a nation's deepest commitments, or better nature: consider Plessy v Ferguson,[107] which upheld racial segregation and stood for almost 60 years until Brown v Board of Education held otherwise.[108] In the former case, the lone dissenter, Harlan J, remarked that Americans liked to 'boast of the freedom enjoyed by our people above all other peoples', but would not live up to that boast if racial segregation were upheld.[109]
Finally, and relatedly, comparative knowledge may enhance judges' capacities and abilities for impartial judging. By providing means to engage in imagined dialogue with comparably situated judges whose decisions carry a similar weight and gravity in another country, judges — who may be ethically prohibited from actually discussing pending cases outside the court — can still benefit from alternative perspectives on a problem in ways that can provide critical distance and thus improve their own decision-making.
These benefits of considering transnational legal sources in the mode of 'deliberative engagement' are functional, expressive and ethical. They are functional to the extent that comparison may heighten a judge's ability to understand, in her own system, the function of judging and the function of a particular constitutional commitment. They are expressive to the extent that comparison may aid a judge in determining whether her constitutional system expresses values that are shared, or not, with others. And they are ethical in that engaging with the work of other courts may help a judge come closer to that degree of impartiality that norms of judging aspire to.
These are by no means the only reasons to engage. The countries of the world are increasingly connected, and what happens in one is increasingly likely to have effects on citizens of others; reasons of normative concern for all peoples, and enlightened self interest on behalf of one's own country may all support postures of engagement. The reasons for engagement are a starting point for rejecting a general posture of resistance. How, though, does engagement with transnational sources fit with broader questions of interpretive theory?
III ENGAGEMENT AND CONSTITUTIONAL THEORY
As noted, many originalists would oppose much use of international or foreign law, though they might approve the use of contemporary international law to interpret terms, like 'treaty' or 'war', intended to work reciprocally with other nations' understandings.[110] Originalism, as an interpretive theory, has been much debated in Australia and in the United States. Although space does not permit a full-fledged argument here, originalism, narrowly understood, is not sufficient for a working constitutional theory in a country like the United States.
First, all but the most devout originalists allow room for the operation of stare decisis and having done so, the question whether to adhere to, expand on, or overrule a prior decision may well be informed by the experience of other countries and by international legal norms. Second, those originalists who adhere to what Professor Goldsworthy calls 'enactment' intentions, rather than 'application' intentions, might also find room to learn from other countries' experiences in deciding how to apply 'enactment' intentions to contemporary issues.[111] Third, a constitution that has stood over a long period of time and has come to function — in part through transnational social movements — for a more inclusive body politic than its drafters and ratifiers envisioned, may well need to be interpreted in light of a broader range of sources in order to give effect to its meaning in that more inclusive polity.
Two major concerns are for democratic legitimacy and judicial constraint. The concern for democratic legitimacy raised by originalists turns out to be very complicated. It is one thing to say that a polity that votes to entrench a constitution should be bound by it and that courts, enforcing the bargain as it was understood soon after its enactment, are acting consistently with democracy. But it is quite another matter to say so with respect to a text adopted a hundred years or more earlier, without the participation of major elements of the adult community, as is the case in both the United States and Australia. To say that democracy requires the court to give effect to the document only as it was understood at the time of enactment — especially to invalidate laws enacted by today's more inclusive majorities[112] — is not a proposition that flows uncontrovertibly from commitments to democratic decision-making.[113] While rule of law values support treating the text as binding, that is a different matter from saying that specific original understandings of that text are binding as well. Engagement with the transnational as non-binding sources, properly and fairly considered, can also be reconciled with appropriate levels of judicial constraint.[114]
The harder question, then, may be, why not convergence? This question cannot be answered without saying something more about interpretive theory and the very concept of a constitution, as well as recognising the possibility of differences among countries.
Apart from originalism, another set of interpretive theories are purposive — they focus on a particular large purpose, or set of purposes, in whose light constitutional interpretation should proceed — for John Hart Ely, 'representation-reinforcement',[115] for Stephen Breyer, 'active liberty',[116] and so forth. But most judges in the United States do not have unified, purposive constitutional theories, but rather are situated in what one might call a common law method of constitutional interpretation. What is meant by this — which may differ from how the phrase is used in Australia — is a method of decision-making bounded by the text, and informed by its original purpose and structure, but also powerfully influenced by past precedents and history and open to considering changing understandings and changing factual settings.[117] On this model, how to interpret a clause, or implement a shared value, can be re-considered, and if the reasons for change are compelling enough, stare decisis can give way to better doctrine.[118]
This common law method of constitutional interpretation has much to commend it as a theory. First, it corresponds with actual practice and is thus more likely to be useful. Second, it functions to link present generations with their past, while providing the stability and flexibility that make constitutions work over time. It also promotes a certain humility in decision-makers — generally constrained by the wisdom of past decision-makers but open to the possibility of better understandings.[119] Finally, by providing multiple avenues for argument and contest it, in effect, makes the process of determining constitutional meaning more inclusive.[120]
This common law view of constitutional interpretation is incompatible with those versions of originalism that animate much resistance to the transnational in the United States.[121] But it may also be less than fully compatible with postures of convergence — and whether this is so may depend on the particular constitution. Here are some reasons why.
First, in common law constitutional decision-making text matters. A constitution like that of Argentina is thus different from that of the United States, in that one has a constitutional directive to treat human rights agreements as of constitutional stature, the other does not. The positivity and specificity of textual authorisation to treat international law as presumptively binding, then, might make a difference.
Moreover, constitutions that last are typically negotiated by contending political forces; compromise is, in a sense, a hallmark of successful constitutional politics — enforcing, or living with foundational compromises may be necessary, even if they become inconsistent with evolving norms. Examples of this might include the United States rule of two Senators for each State — two for California with its 36.5 million people and two for Wyoming with its 500 000 people[122] — or Canada's limitation of constitutionally required public support to only certain Christian denominational schools.[123]
Third, constitutions are typically concerned with institutional allocations of authority, for example, as between courts, legislatures and governments. Legislatures and governments may have a role to play in giving meaning to constitutional texts, and these may vary from one polity to another.[124] This may be an aspect of what Gerald Neuman has referred to as the institutionally specific character of seemingly parallel rights.[125]
Fourth, national constitutions are often closely bound up with national identity. Where national identity itself is founded on cosmopolitan commitments, convergence is more plausible. But the United States, perhaps unlike Australia, has been hesitant on human rights issues to make binding commitments to international treaties. What Professor Louis Henkin called the 'Ghost of the Bricker amendment' lives on.[126] The Bricker amendment, which came close to passage in Congress in the early 1950s, would have denied or limited treaties' domestic effect and was motivated, in part, by a fear that the United Nations Charter would be invoked to support a federal anti-lynching bill. Although the amendment failed, part of the informal agreement reached between the President at the time and congressional leaders was that no human rights covenants would be brought forward for ratification — and none were for many years. United States national identity is tied up with its Constitution and, at least at times, to its being both a leader and a loner.
National constitutions necessarily have multiple and, at times, competing functions and goals, which must be considered in evaluating interpretive approaches in general and the appropriate posture to take with respect to foreign and international law. These multiple functions may be incompatible with single-valenced interpretive theories and may also be inconsistent with strong postures, either of resistance to, or convergence with transnational law, foreign or international. These functions, and their interpretive implications, can only be sketched here.
What is distinctive about constitutions? First, they are regarded as a form of national self-expression, far more so than, say, the law of contracts.[127] Second, they have broad subject matters, serving a variety of internal and external functions — providing for the national defence and foreign relations; specifying frameworks for elections, and rules for internal governance and intergovernmental relationships; identifying rights to protect fundamental individual and collective interests; stating rules, powers and rights to provide a legal regime to promote material prosperity; confirming and embodying foundational compromises. Third, they are typically entrenched more deeply than other forms of law — they are harder to change. Fourth, the constitution is enforceable as law by one or more courts and is regarded as establishing a fundamental, superior domestic legal norm against which the legality of all government conduct is measured. So, to summarise, constitutions are fundamental, self-expressive, ambitiously frame-working, multi-functional, entrenched, judicially enforced and superior domestic law.
What are some of the interpretive implications of these multiple functions? Only an example can be offered. The rights-protecting function of a constitution may depend on its legitimacy within its own polity, which, in turn, may depend on the constitution's being seen as an authentic legal expression of national values; depending on particular histories, and constitutional texts, the authenticity of the constitution as a national expression may preclude a posture of convergence. On the other hand, all constitutions seek to enable good external relations with foreign countries, a goal consistent with a willingness, at least on some issues, to consider foreign or international law.
Would the task of reconciling these multiple functions of constitutions benefit from the more flexible and multi-valenced interpretive practices, like those possible through what is here called common law constitutional interpretation? Are these multiple functions more consistent with a posture of engagement, rather than convergence, with the transnational? For now, these are questions, not assertions, in what, it is hoped, will be a continuing transnational conversation.
[*] Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. 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, [2002] USSC 3164; 536 US 304, 348 (2002) (Scalia J, dissenting).
[2] Richard Posner, 'The Supreme Court, 2004 Term — Foreword: A Political Court' [2005] HarvLawRw 30; (2005) 119 Harvard Law Review 31.
[3] [2005] USSC 2017; 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, David Strauss, 'Common Law Constitutional Interpretation' (1996) 63 University of Chicago Law Review 877; Richard Fallon, 'A Constructivist Coherence Theory of Constitutional Interpretation' (1987) 100 Harvard Law Review 1189. 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] HCA 37; (2004) 219 CLR 562, 590–1 (McHugh J) (referring to government submissions in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (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: Joseph M Colomer, 'Introduction: Disequilibrium Institutions and Pluralist Democracy' (2001) 13 Journal of Theoretical Politics 235, 241: 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: Alberto Alesini and Robert J Barro, 'Currency Unions' (2002) 122 Quarterly Journal of Economics 409; 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 Kay Hailbronner, 'Fifty Years of the Basic Law — Migration, Citizenship, and Asylum' (2000) 53 Southern Methodist University Law Review 519, 521-22.
[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; John Dugard and Christine Van den Wyngaert, 'Reconciling Extradition with Human Rights' (1998) 92 American Journal of International Law 187, 191 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 Janet Koven Levit, 'The Constitutionalization of Human Rights in Argentina: Problem or Promise?' (1999) 37 Columbia Journal of Transnational Law 281, 293.
[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] Michael Kirby, 'Seventh Annual Grotius Lecture, International Law — The Impact on National Constitutions' (2005) 21 American University International Law Review 327, 341 (quoting Kartinyeri v Commonwealth of Australia [1998] HCA 22; (1998) 195 CLR 337, 417).
[31] See, eg, Kartinyeri v Commonwealth of Australia [1998] HCA 22; (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] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J) (discussing statutory interpretation); Cf 315 (McHugh J). See generally Glenn Cranwell, 'Treaties and Australian Law: Administrative Discretions, Statutes and the Common Law' [2001] QUTLawJJl 5; (2001) 1 Queensland University of Technology Law & Justice Journal 49.
[32] [2004] HCA 39; (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] Jeremy Waldron, 'The Supreme Court, 2004 Term — Comment: Foreign Law and the Modern Ius Gentium' [2005] HarvLawRw 28; (2005) 119 Harvard Law Review 129, 132, 140.
[37] David Beatty, The Ultimate Rule of Law (2004).
[38] Cf Anne-Marie Slaughter, 'A Typology of Transjudicial Communication' (1994) 29 University of Richmond Law Review 99: describing transnational networks of judges engaged in 'transjudicial' communication.
[39] See David S Law, 'Generic Constitutional Law' (2005) 89 Minnesota Law Review 652.
[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, Veron Mei-ying Hung, 'China's WTO Commitment on Independent Judicial Review: Impact on Legal and Political Reform' (2004) 52 American Journal of Comparative Law 72: 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] HCA 37; (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 [1989] USSC 160; 492 US 361, 369 fn1 (1989) (Scalia J, delivering the opinion of the Court) ('Stanford').
[49] Printz v United States, [1997] USSC 77; 521 US 898 (1997) ('Printz').
[50] Ibid 921 fn 11.
[51] Fong Yue Ting v United States, [1893] USSC 185; 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 David Schneiderman, 'Investment Rules and the New Constitutionalism' (2000) 25 Law and Social Inquiry 757, 765–7.
[53] See Vicki C Jackson, 'Constitutional Comparisons: Convergence, Resistance, Engagement' [2005] HarvLawRw 45; (2005) 119 Harvard Law Review 109, 113 fn 9: 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 Kim Lane Scheppele, 'A Realpolitik Defense of Social Rights' (2004) 81 Texas Law Review 1921, 1941–9. 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 Jenny S Martinez, 'Towards an International Judicial System' (2003) 56 Stanford Law Review 429, 461–77. 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] HCA 57; (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); Cheryl Saunders, 'The Use and Misuse of Comparative Constitutional Law' (2006) 13 Indiana Journal of Global Legal Studies 37, 50 (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] HCA 39; (2004) 220 CLR 1, 75–6 (Gummow and Hayne JJ) (discussing Cantwell v Connecticut, [1940] USSC 84; 310 US 296 (1940) and Chaplinsky v New Hampshire, [1942] USSC 50; 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] HCA 45; (1992) 177 CLR 106.
[63] [1994] HCA 46; (1994) 182 CLR 104.
[64] [1997] HCA 25; (1997) 189 CLR 520.
[65] Saunders, above n 60, 56-7, 61; see Sujit Choudhry, 'Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation' (1999) 74 Indiana Law Journal 819, 835-38: describing 'dialogic' forms of comparison. The term 'engagement' is used here because, unlike 'dialogue', it does not necessarily imply an answer back.
[66] [1990] INSC 224; [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] [2005] USSC 2017; 543 US 551 (2005).
[78] [1989] USSC 160; 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[2005] USSC 2017; , 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, [1989] USSC 160; 492 US 361 (1989); in Roper[2005] USSC 2017; , 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[2005] USSC 2017; , 543 US 551, 569–70 (2005).
[82] Ibid 574.
[83] In so doing the Court departed from the assertion by a plurality in Stanford[1989] USSC 160; , 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[2005] USSC 2017; , 543 US 551, 574–5 (2005): where the Court indicated that the Stanford[1989] USSC 160; , 492 US 361 (1989) plurality's rejection of the Court exercising 'independent judgment' was itself inconsistent with prior decisions and that Stanford [1989] USSC 160; 492 US 361 (1989) is 'no longer controlling'.
[84] Roper[2005] USSC 2017; , 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 Vicki C Jackson, 'Transnational Discourse, Relational Authority, and the US Court: Gender Equality' (2003) 37 Loyola of Los Angeles Law Review 271.
[87] Judith Resnik, 'Law's Migration: American Exceptionalism, Silent Dialogues and Federalism's Multiple Ports of Entry' (2006) 115 Yale Law Review 1564.
[88] See, eg, Vicki C Jackson, 'Constitutional Law and Transnational Comparisons, The Youngstown Decision and American Exceptionalism' (2006) 30 Harvard Journal of Law and Public Policy 191, 204–14: 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, [1995] USSC 36; 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, Martin Flaherty, 'Judicial Globalization in the Service of Self-Government' (2006) 20 Ethics and International Affairs 477, 480, 493, 495–9. 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] HCA 20; (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[2005] USSC 2017; , 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] HCA 20; (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[2005] USSC 2017; , 543 US 551, 622 (2005) (Scalia J, dissenting).
[96] See also Karen Knop, 'Here and There: International Law in Domestic Courts' (2000) 32 New York University Journal of International Law and Politics 501, 525. 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, [1952] USSC 74; 343 US 579, 651–2 (1952) (Jackson J, concurring).
[98] Kim Lane Scheppele, 'Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Constitutional Influence through Negative Models' (2003) 1 International Journal of Constitutional Law 296.
[99] Constitutional Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, pt I, s 1.
[100] See Wilkerson v Utah, [1878] USSC 201; 99 US 130, 134 (1879).
[101] Muller v Oregon, [1908] USSC 53; 208 US 412, 419–20 (1908). Muller rejected the constitutional challenge based on the Fourteenth Amendment.
[102] Roper[2005] USSC 2017; , 543 US 551, 626 (2005) (Scalia J, dissenting).
[103] [1997] USSC 77; 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 Vicki C Jackson, 'Narratives of Federalism: Of Continuities and Comparative Constitutional Experience' (2001) 51 Duke Law Journal 223, 269–70.
[104] [1966] USSC 143; 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] [1896] USSC 151; 163 US 537 (1896).
[108] [1954] USSC 42; 347 US 483 (1954).
[109] Plessy v Ferguson, [1896] USSC 151; 163 US 537, 562 (1896) (Harlan J, dissenting).
[110] See, eg, John O McGinnis, 'Contemporary Foreign and International Law in Constitutional Adjudication' (2006) 60 Alabama Law Review 801, 803.
[111] See Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation' [1997] FedLawRw 1; (1997) 25 Federal Law Review 1, 20. 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, [1997] USSC 68; 521 US 507 (1997): invalidating the Religious Freedom Restoration Act, 42 USCS (1993); United States v Morrison, [2000] USSC 42; 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 H Patrick Glenn, 'Persuasive Authority' (1987) 32 McGill Law Journal 261, 263, 287–8; see also Sarah K Harding, 'Comparative Reasoning and Judicial Review' (2003) 28 Yale Journal of International Law 409.
[119] See Ernest Young, 'Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation' (1994) 72 North Carolina Law Review 619; 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, [1993] USSC 6; 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] Gerald L Neuman, 'Human Rights and Constitutional Rights: Harmony and Dissonance' (2003) 55 Stanford Law Review 1863, 1891–5.
[126] Louis Henkin, 'US Ratification of Human Rights Conventions: The Ghost of Senator Bricker' (1995) 89 American Journal of International Law 341, 348–9.
[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).