Against Foreign Law (Twenty-Fourth Federalist Society Student Symposium, Law and Freedom‪)‬

In recent years, several Supreme Court Justices have looked to the decisions of foreign and international courts for guidance in interpreting the U.S. Constitution. This practice has occurred in several controversial, high-profile cases. Roper v. Simmons (1) outlawed application of the death penalty to offenders who were under eighteen when their crimes were committed. Lawrence v. Texas (2) struck down a state law that criminalized homosexual sodomy. Atkins v. Virginia (3) held against the execution of mentally retarded capital defendants. All three cite foreign and international precedents. In Roper, the Court, per Justice Kennedy, found it "proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.... The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." (4) The Court relied on a provision of the United Nations Convention on the Rights of the Child--a treaty the United States has not ratified--and on amicus briefs by the European Union and interested foreign observers. (5) In Lawrence, Justice Kennedy's majority opinion cited decisions of the European Court of Human Rights to conclude that prohibiting homosexual sodomy is at odds with the current norms of western civilization. (6) In Atkins, the majority opinion by Justice Stevens relied on an amicus brief filed by the European Union to assert that executing the mentally retarded is "overwhelmingly disapproved." (7) References to foreign decisions have appeared not just in cases expanding individual rights, (8) but also in dissents from federalism opinions. (9)