Georgia Journal of International and Comparative Law, Vol. 32, No. 2 (2004), pp. 429-436

Abstract

Whether the Supreme Court should look to international law in deciding constitutional issue depends largely on what is meant by "looking to" international law. Some international norms are legally binding on American courts, either because we have agreed to follow them by adopting treaties or because they form part of the federal common law. I certainly agree that the Supreme Court, like the rest of us, ought to obey these aspects of international law. But the role of international norms in American courts has recently attracted attention for a different reason. In Lawrence v. Texas the Supreme Court, overruling Bowers v. Hardwick, struck down a statute that prohibited anal and oral sex between members of the same sex, on the ground that the statute violated the due process clause of the Fourteenth Amendment. In the course of the opinion, the Court cited a number of authorities, including a ruling by the European Court of Human Rights, in Dudgeon v. United Kingdom, that had invalidated similar laws. Other recent Supreme Court cases have made reference to decisions by international tribunals and other international norms, and Supreme Court justices, in their extracurricular writings, have championed the practice. Since nobody asserts that these rulings are legally binding on American courts, the Court's recent practice raises the question of why we should pay any attention to them. The hard question raised by Lawrence is just this: Should the Supreme Court give any weight to international law as a source of American constitutional doctrine, just because it exists? Contrary to what I take to be the view of the Lawrence majority, and contrary to Professor Bodansky, it seems to me the better answer is that it should not.

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