..."judicial globalization." The American judiciary, however, has exhibited a distinct diffidence toward the use of comparative and international law to decide domestic cases, a diffidence that extends to many elected officials as well.

To a non-American audience, opposition to judicial borrowing of international and comparative legal materials might appear mystifying. Outside the United States, judicial globalization of this sort is all but taken for granted. Leading national courts in this regard cut across all imaginable lines: India, Canada, Zimbabwe, Hong Kong, South Korea, and Botswana all borrow from legal sources outside their borders. Some states, most notably South Africa, constitutionally require reference to international and comparative law for domestic interpretation. Last and here not least, other states frequently cite the case law of the U.S. Supreme Court, including, among others, the Irish Supreme Court and the U.K. House of Lords. (2)

The U.S. Supreme Court has not returned the favor until very recently--at least from a short-term perspective. In the longer view, the justices for over a century relied on international and foreign sources (at least for common law, in the latter case) extensively before entering an isolationist phase which it only lately appears to be leaving. (3) Despite this history, the Court's recent embrace of non-U.S. materials remains tentative and contested. Widely observed have been recent allusions to outside sources in important decisions on privacy, (4) affirmative action, (5) and the death penalty. (6)

Wide, too, has been the opposition. As noted above, some objections have come from within the judiciary itself. Other objections have come from more expected quarters, such as the academy, the executive, and the legislature--in the last case, even to the point of a congressional bill to prohibit judicial reliance on foreign law. There are various rationales behind this opposition, ranging from the ease with which unfamiliar sources can be manipulated to the concern that looking abroad may diminish certain fundamental rights at home. But by far the greatest source of hostility flows from a potent mix of American exceptionalism and democratic theory. The Constitution of the United States, and the laws made pursuant thereto, derive their force from the positive consent of the American people. Interpreting U.S. law with reference to international and comparative standards empowers an unelected judiciary to privilege the views of outsiders at the expense of the American people, and so is inconsistent with our fundamental conceptions of self-government. At no time does this inconsistency become more insufferable than when unelected judges apply a Constitution ordained by We the People of the United States to invalidate laws enacted by our elected representatives based upon legal materials in whole or in part foreign to American democracy. Put in European terms, the practice suffers from a near total "democratic deficit." (7)

Various defenses of the Supreme Court's reliance on international and comparative sources have been made, not least by some of the Supreme Court justices themselves. (8) None of the defenses, however, have met the democratic objections head-on. Instead, justifications have mainly defended the general utility of referencing additional sources rather than the specific legitimacy of referencing sources from outside the U.S. legal system. (9) The defenses to date fall short for at least two sets of reasons. They fail to grapple with legitimate concerns about the practice. In consequence, they offer no reasons for those opposed to this practice to reconsider their resistance.

Yet, despite the failings of the defenses, there are perhaps a surprising number of democratically based justifications for judicial borrowing. One, which may be called the "global mirror" justification, holds that where a true global consensus exists in the form of customary international law or jus cogens, international and comparative legal materials presumptively reflect commitments that are held domestically as well as internationally, especially with regard to a discrete set of fundamental rights. Another, which may be termed the "judicial foreign affairs authority" justification, argues that courts are institutionally superior to the executive or legislative branches in determining the existence and weight of international and comparative law determinations. (10)

This essay will develop two other defenses that are potentially more powerful still: a "forward-looking" defense with roots in international relations and therefore of general applicability, and a "backward-looking" one that sounds in U.S. history with unique force, in American constitutional doctrine in particular. Looking forward, judicial globalization becomes not just permissible but imperative once the hoary doctrine of separation of powers is itself considered in a global context. Global separation of powers theory views globalization as enhancing the powers of the executive in any particular country. It follows that any form of globalization that works to enhance the authority of a corresponding judiciary (or legislature) works to maintain and restore the goal of balance among the principal branches of government that is a central feature of separation of powers doctrine.

Looking to the past, a more distinctively American defense of judicial borrowing potentially comes from originalism, an approach to constitutional interpretation usually co-opted by supporters of American exceptionalism. As is often the case, historical sources present a picture that is more complex and counterintuitive than these originalists themselves assume. In this instance, there is ample evidence to suggest that the Founding generation, especially its Federalist leadership, held the law of nations in sufficient regard as to create a presumption that the Constitution should be interpreted consistent with international law where possible. This has in fact been settled doctrine almost since the Founding with regard to statutes under the "Charming Betsy" canon.

Democratic justifications also suggest new angles on more conventional defenses. In particular, grappling with historical considerations calls into question the principal nondemocratic objection to judicial globalization, which is that international and comparative legal materials are susceptible to manipulation, self-serving citation, and cherry-picking generally. The widespread misuse of historical materials, among other interdisciplinary sources, at a minimum shifts the burden onto opponents to demonstrate why nondomestic sources are any more manipulable than the conventional run of legal materials.

JUDICIAL GLOBALIZATION VERSUS DEMOCRATIC SELF-GOVERNMENT

The Current Contest over Judicial Globalization in the United States The United States Supreme Court has cited "foreign law" with gusto since the early days of the republic. For present purposes, "foreign" means international law, whether treaties or customs, as well as comparative sources, such as the jurisprudence of other national courts, common-law jurisdictions especially. Often the Court's invocation of foreign law has been tightly cabined, as in cases that turned on "the law of nations," or demanded the application of other nations' jurisprudence on conflict of laws grounds. Yet, to a surprising degree, the federal courts also relied on foreign law when applying purely domestic standards. What all this meant, to what extent it has continued, and its relevance to current practices are questions to which scholars are only now turning. (11)

Nonetheless, for the past several generations the conventional wisdom has been that the Supreme Court has been parochial, or at least a net exporter of legal ideas rather than an importer--that is, until recently. (12) In the past several years, U.S. justices and judges have begun to "borrow" foreign law in a series of high-profile cases that have required interpretation of the Constitution on many of the most controversial issues of the day. Not surprisingly, the combination of what appears to be a new practice with the adjudication of hot-button controversies has drawn strident opposition.

Among the most telling early examples occurred when Justice Stevens made the barest reference to global practice (or nonpractice) in Atkins v. Virginia, where he observed: "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." (13) That passing comment drew the extended wrath of Chief Justice Rehnquist and Justice Scalia, jurists who acknowledged reference to evolving domestic traditions, however grudgingly. Justice Scalia in particular put his contempt on full display: "But the Prize for the Court's Most Feeble Effort to fabricate 'national consensus' must go to its appeal (deservedly relegated to a footnote) to the views of ... members of the so-called 'world community.' ... Irrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people." (14)

The type of judicial globalization that Justice Scalia attacked has continued to infiltrate the United States nonetheless. (15) To great fanfare the Court, or at least individual justices, has cited international and comparative law sources in a number of recent and high-profile cases. In Lawrence v. Texas, the Court relied in part on European Court of Human Rights jurisprudence when declaring unconstitutional a state law criminalizing sodomy. (16) For Justice Ginsburg, international human rights treaties mattered in deciding to uphold law school affirmative action programs. (17) As noted, the Court, however fleetingly, referred to comparative law in voiding the death penalty for the mentally challenged. (18) Though less noted, Justice Breyer looked to European Union practice in seeking, unsuccessfully, to justify federal "commandeering" of local officials. (19)

As with globalization in general, the phenomenon--and the reactions to it--promise only to continue. In last year's Roper v. Simmons, the Court not only declared that the execution of prisoners convicted of capital crimes committed as minors violated the Eighth Amendment's prohibition on "cruel and unusual punishment," (20) but Justice Kennedy's majority opinion also did so with a discrete section devoted to both international human rights instruments and comparative practice, including discussion of the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, as well as a global survey of state practice. (21) On cue, sharp disagreement and defense followed both within and outside the Court. Justice Scalia's dissent reserved special disdain for the majority's reliance on international and comparative materials, declaring: "though 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," (22) and continuing: "that American law should conform to the laws of the rest of the world--ought to be rejected out of hand." (23) While...

NOTE: All illustrations and photos have been removed from this article.



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