1 See generally Sarah, H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1 (2002)Google Scholar (critically surveying this history) .Justice George Sutherland raised this technique of interpretation to another level in his opinion in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1937), which offered a historical and structural justification for extra-constitutional foreign affairs powers vested in the federal government. That much-criticized opinion goes too far in decoupling international law from the other resources of constitutional interpretation.

2 Jones v. United States, 137 U.S. 202, 212 (1890). Acquisition by discovery differed from acquisitions by treaty or conquest, which bore closer relation to enumerated powers.

3 Chae Chan Ping v. United States, 130 U.S. 581, 604-05 (1889) (upholding inherent power to exclude); Fong Yue Ting v. United States, 149 U.S. 698, 707-11 (1893) (upholding inherent power to deport). The Court could have relied on enumerated powers like foreign commerce, but deliberately staked out wider ground.

4 Blackmer v. United States, 284 U.S. 421, 437-38 (1932).

5 Downes v. Bidwell, 182 U.S. 244, 306, 310-11 (1901) (White, J., concurring). To the extent that the power also applied to territory acquired by discovery, id. at 306, it was apparently freestanding.

6 Arver v. United States, 245 U.S. 366, 378 & n.l (1918) (construing the power to raise armies in light of Vattel and broad survey of current foreign practice, as well as other sources).

7 Kohl v. United States, 91 U.S. 367, 371-72 (1876) (citing Vattel and Bynkershoek, along with Kent and Cooley). The Court reconciled the eminent domain power with the constitutional structure by limiting its application to takings for public uses within the other powers of the federal government. Id. at 372; United States v. Gettysburg Elec. Ry., 160 U.S. 668, 679 (1896).

8 Juilliard v. Greenman, 110 U.S. 421, 447-48 (1884) (interpreting the scope of the power to borrow money in light of past and contemporary European practice); Knox v. Lee, 79 U.S. (12 Wall.) 457, 556, 560 (1872) (Bradley, J., concurring) (finding power inherent in sovereignty).

9 302 U.S. 319, 325-26 & n.3 (1937) (upholding new trial after prosecutor’s appeal as consistent with due process).

10 Hurtado v. California, 110 U.S. 516, 531 (1884) (upholding commencement of murder prosecution by information rather than indictment as consistent with due process).

11 Stanford v. Kentucky, 492 U.S. 361, 369 n.1 (1989).

12 Robertson v. Baldwin, 165 U.S. 275, 283-86 (1897) (citing historical and contemporary practice of other nations in support of specific enforcement of seamen’s employment contracts).

13 Cunard S.S. v. Mellon, 262 U.S. 100, 122-24 (1923) (construing the geographical scope of the Eighteenth Amendment in light of international law).

14 Harold Hongju, Koh, International Law as Part of Our Law, 98 AJIL 43 (2004)Google Scholar; see also Joan, F. Hartman, “Unusual” Punishment: The Domestic Effects of International Norms Restricting the Application of the Death Penalty, 52 U. Cin. L. Rev. 655 (1983).Google Scholar

15 239 U.S. 299, 311 (1915) (upholding involuntary expatriation of a citizen who married a foreign husband).

16 356 U.S. 86 (1958); see also Afroyim v. Rusk, 387 U.S. 253 (1967); Schneider v. Rusk, 377 U.S. 163 (1964).

17 Trap, 356 U.S. at 102.

18 Id. at 100; see Gerald, L. Neuman, Human Dignity in United States Constitutional Law, in Zur Autonomie Des Individuums: Liber Amicorum Spiros Simitis 249, 255–58 (Simon, Dieter & Weiss, Manfred eds., 2000).Google Scholar

19 For fuller discussion, see Gerald, L. Neuman, Human Rights and Constitutional Rights: Harmony and Dissonance, 55 Stan. L. Rev. 1863 (2003).Google Scholar

20 Constitución Argentina Art. 75(22) ;Theo Öhlinger,Verfassungsrecht 23–25, 79 (4th ed. 1999)Google Scholar (discussing constitutional status of the European human rights convention in Austria).

21 Constitución Art 10(2) (Spain); Constitución polìtica Art 93(2) (Colom.);Constttutia Romaniei Art 20(1).

22 S. Afr. Const. §39 (1). The South African Constitutional Court has construed this direction as including international human rights law that does not bind South Africa, such as unratified treaties and decisions from the European and inter-American regional systems. Government of the Republic of South Africa v. Grootboom, 2001 (1) SALR 46, 63–64 (CC). The provision also authorizes (without requiring) the courts to consider foreign law (e.g., United States constitutional doctrines).

23 Human rights treaties often contain savings clauses emphasizing that the treaties set forth minimum standards and are not meant to impair national provisions more favorable to the protected rights. See, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, Art 5(2), 999 UNTS 171 [hereinafter ICCPR]; Neuman, supra note 19, at 1886-87. To the extent that protected rights may conflict, these savings clauses are not fully effective. Id. The U.S. Senate has generally responded to the possibility of conflict between treaty rights and constitutional rights by conditioning its consent to human rights treaties on the supremacy of constitutional rights.

24 Judgment of Mar. 26, 1987, BVerfGE 74, 358 (370); Kirchhof, Paul, Verfassungrechtlicher und internationaler Schutz derMenschenrechte: Konkurrenz oderErgdnzung? 21 EuropÄische Grundrechte Zeitschrift 16, 31–32 (1994).Google Scholar

25 See Gérard, V. La Forest, The Expanding Role of the Supreme Court of Canada in International Law Issues, 1996 Can. Y.B. Int’l L. 89, 97–98 Google Scholar; Suresh v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 3, 31-32, 38; see also Knop, Karen, Here and There: International Law in Domestic Courts, 32 N.Y.U.J. Int’l L. & Pol. 50 (2000)Google Scholar (defending “comparative” use of international law in Canada).

26 Such declarations were made with respect to the Convention Against Torture, 136 Cong. Rec. 36, 194 (1990)Google Scholar; the ICCPR, 138 Cong. Rec. 8068 (1992)Google Scholar; the International Convention on the Elimination of All Forms of Racial Discrimination, 140 Cong. Rec. 14, 326 (1994)Google Scholar; and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 148 Cong. Rec. S5717 (daily ed. June 18, 2002)Google Scholar; but not with respect to the Protocol to the Refugee Convention, 114 Cong. Rec. 29, 607 (1968)Google Scholar; the Genocide Convention, 132 Cong. Rec. 2350 (1986)Google Scholar; or the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 148 Cong. Rec. S5716 (daily ed. June 18, 2002)Google Scholar. It would be an error to claim that the Senate always attaches non-self-executing declarations to human rights treaties.

Both the desirability and the effect of such declarations have been disputed, but in my opinion they can prevent a treaty provision from being self-executing for the United States.

27 See Tushnet, Mark, The Possibilities of Comparative Constitutional Law, 108 Yale L.J. 1225, 1265-69 (1999).Google Scholar

28 See Claire, L’Heureux-Dubé, The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, 34 Tulsa L.J. 15, 33–34, 37–39 (1998).Google Scholar

29 For example, savings clauses, denote 23 supra, attempt to accommodate the possibility that positive treaty norms may not express the full content of a human right. The jurisprudence of the European Court of Human Rights also includes an institutional doctrine known as the “margin of appreciation,” which grants varying degrees of deference to the national authorities’ evaluation of how a convention right applies in particular circumstances. See Jacobs and White, The European Convention on Human Rights 210–15 (Ovey, Clare & Robin, C. A. White eds., 3d ed. 2002)Google Scholar; Neuman, supra note 19, at 1884. As a result, decisions of that court upholding a national practice against a human rights challenge do not necessarily express an ultimate conclusion about the compatibility of the practice with the right.

30 See Kreimer, Seth, Invidious Comparisons: Some Cautionary Remarks on the Process of Constitutional Borrowing, 1 U. Pa. J. Const. L. 640, 647–48 (1999).Google Scholar

31 Reid v. Covert, 354 U.S. 1, 16–17 (1957) (plurality opinion of Black, J.); see also Boos v. Barry, 485 U.S. 312, 324(1988) (O’Connor, J.) (citing Reid v. Covert).

32 Cf. City of Boernev. Flores, 521 U.S. 507 (1997) (rejecting the idea that Congress has power under Section 5 of the Fourteenth Amendment to alter the meaning of constitutional rights).

33 I repeat the word “current,” because these understandings themselves derive from constitutional interpretation, and are subject to constitutional amendment, or conceivably to doctrinal evolution in the face of transnational regimes that the United States might choose to create in the future.

34 123 S.Ct. 2472 (2003).

35 478 U.S. 186 (1986).

36 123 S.Ct. at 2481 (citing Dudgeon v. United Kingdom, 45 Eur. Ct.H.R. (ser.A) (1981) (holding that Northern Ireland law criminalizing consensual adult sodomy violated the right to respect for private life under Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 UNTS 221)).

37 Lawrence, 123 S.Ct. at2481; Bowers,478U.S. at 196-97 (Burger, C.J., concurring); id. at 194 (White, J.) (characterizing that argument as “at best, facetious”).

38 123 S.Ct. at 2483 (citations omitted).

39 ICCPR, supra note 23, Art. 17. The United States ratified the ICCPR without any reservation addressing Article 17.

40 Brief for Mary Robinson et al., amici curiae, at 11-12 & nn.15, 16, Lawrence v. Texas, 123 S.Ct. 2472 (2003) (No. 02-102) [hereinafter Brief], available in 2003 WL164151 (citing Toonen v. Australia, Communication No. 488/1992, UN Doc. CCPR/C/50/D/488/1992 (1994); Concluding Observations of the Human Rights Committee: United States of America, UN Doc. CCPR/C/79/Add.50; A/50/40 [paras. 266-304], para. 287 (1995)).

41 The very pages of the amicus brief cited by the Court in the passage quoted in the text at note 38 supra refer to the Human Rights Committee’s views in Toonen, Australia’s responsive action, and the Human Rights Committee’s criticism of U.S. sodomy laws, before turning (on page 12) to odier countries (including Canada, New Zealand, Israel, and South Africa).

42 The Dudgeon decision itself primarily expressed a contemporary suprapositive interpretation of a broadly phrased Convention right. Consensual factors underlying the decision include the adoption of the generalized guarantee of respect for “private and family life” in the European Convention, the protection of that right by a high standard of justification (“necessary in a democratic society,” which die European Court of Human Rights has interpreted in terms of proportionality), and perhaps the Court’s reference to decriminalization of homosexual practices in most member states (Dudgeon, supra note 36, para. 60). The Convention did not specifically address homosexuality. Suprapositive factors include die Court’s identification of consensual homosexual activity as involving “a most intimate aspect of private life” that elevated the level of justification required (para. 52), the Court’s usual interpretation of “democratic society” as characterized by “tolerance and broadmindedness” (para. 53), and the Court’s reliance on a contemporary “better understanding, and in consequence an increased tolerance, of homosexual behaviour” (para. 60). Institutional factors included the wider margin of appreciation that the Court affords to national regulation for the protection of morals (para. 52), and the delicate political situation in Nordiern Ireland (paras. 57-59); these factors favored the government but were outweighed by the intensity of the intrusion on private life.

43 Cf. Bowers v. Hardwick, 478 U.S. at 191 (emphasizing the Court’s need in substantive due process cases to “assure itself and the public that announcing rights not readily identifiable in the Constitution’ s text involves much more than the imposition of the Justices’ own choice of values”).

44 Brief, supra note 40, at 16–18.

45 123 S.Ct. at 2497–98 (Scalia, J., dissenting).

46 On the latter point, presumably the positive action of the treaty makers cannot preclude die Court from deriving normative or functional insight from international human rights norms, if only as a kind of foreign law. The Court should also take into account the reasons for the political branches’ dissent from the norm.