When the Supreme Court handed down its decision in Roper v. Simmons, a longstanding debate about comparative analysis in constitutional cases came to national prominence. In Roper the Court relied in part on comparative precedent in ruling that the execution of juvenile offenders violates the Eighth Amendment's proscription against cruel and unusual punishment. This look beyond our borders earned the Supreme Court both accolades and scathing criticism. This article comprehensively evaluates the place of comparative analysis in our constitutional jurisprudence. It discusses and adds to the arguments in support of comparative constitutional advocacy offered by several leading scholars, and responds to arguments against the practice, including many that figured in the confirmation hearings for Chief Justice John Roberts and Associate Justice Samuel Alito.
The article identifies several catalysts that have driven comparative constitutionalism to the fore, including the exponential growth of foreign constitutional precedent, the similarity of constitutional issues worldwide, shared analytic methods among jurists, and increased availability of foreign materials. Also supporting the appropriateness of comparative analysis are increasing globalization, international judicial interaction, constitutional convergence, and the growing sophistication of foreign constitutional courts. Countering these factors are the U.S. Supreme Court's tradition of separateness, a longstanding view of our own constitutional uniqueness, America's head start in constitutionalism, and the persistence of insularity and exceptionalism in American legal education.
Comparative analysis is only worthwhile if it confers unique benefits not available from domestic law that justify the added challenges of identifying and contextualizing foreign constitutional law. On the benefits side of this formula are satisfaction of constitutional curiosity, shared institutional responsibility among jurists, and increased opportunities for constitutional dialogue. Further, by looking to decisions of foreign courts, U.S. jurists can identify rules that work elsewhere and consider their application here, as well as reject rules that have either proven detrimental elsewhere or clearly would do so here. Considering the opinions of foreign courts also exposes U.S. jurists to ideas uninfluenced by American political landscape, gives jurists the opportunity to return to first principles, and allows them opportunities for judicial cross-fertilization.
The article evaluates and rejects claims against comparative constitutional analysis that stem from conceptualization of the US Constitution as a social contract, reliance on original intention, or assertions that reliance on foreign precedent unconstitutionally delegates decision making and interferes with separation of powers. The article accepts some limits on use of foreign precedent based on American exceptionalism but argues that these concerns go to the weight of foreign precedent, not its admissibility. The main challenges inherent in comparative constitutional advocacy, however, stem primarily from U.S. lawyers' and judges' lack of expertise with foreign materials. Many advocates and jurists are not sufficiently familiar with foreign jurisdictions to ensure that materials selected are sufficiently similar and relevant to the case at hand. Adding to the challenge are obvious language and access barriers. Despite these challenges, comparative constitutional advocacy is worth the candle, although the article argues for several significant changes in legal education to give American lawyers more skill in using foreign materials. The exercise of looking beyond our borders for insight into constitutional issues should begin in law school and become a norm in constitutional advocacy.
Radhert, Mark C. “Comparative Constitutional Advocacy.” American University Law Review 56, no. 3 (February 2007): 553-665.